Family Law

The Government has announced that it will not implement the Law Commission's recommendations for reform of cohabitation law.

In 2007 the Law Commission recommended the introduction of a new scheme of financial remedies which would not apply to all cohabitants and where it did apply would only give rise to remedies relating to contributions made to the relationship.

In a statement to the House of Commons Justice Minister Jonathan Djanogly said:  "The Law Commission published its report on 31 July 2007, but no action was taken by the previous Administration, who wished to first seek research findings on the Family Law (Scotland) Act 2006. This Government have now carefully considered the recommendations of this thorough report, together with the outcomes of research on the 2006 Act.

"The findings of the research into the Scottish legislation do not provide us with a sufficient basis for a change in the law. Furthermore, the family justice system is in a transitional period, with major reforms already on the horizon. We do not therefore intend to take forward the Law Commission's recommendations for reform of cohabitation law in this parliamentary term."

In March 2008, the previous Labour Government responded to the Law Commission's report by announcing that it would be taking no further action on the recommendations, choosing to wait until the research findings from the implementation of the Family Law (Scotland) Act 2006, which came into effect in 2007.

Speaking to The Times last February, the President of the Family Division, Sir Nicholas Wall, gave his support to the reforms and said that unmarried couples should have rights to a share of property if they split up.

Sarah Higgins, Partner and Head of the Family group at Charles Russell LLP said: "It is a pity that the Law Commission proposals for the reform of the law on cohabitants has been shelved. These proposals would not have led to cohabitants having the same rights as married couples, as they applied only to those who had made qualifying contributions and who had lived together for a certain length of time. There were also provisions for opting out.

"The current law can be uncertain and expensive, and lead to an unfair result particularly to the partner in the weaker financial position who has made a non-financial contribution (such as bringing up children). Although greater public awareness of the pitfalls of cohabitation may assist some, the Commission accepted that this was not the whole answer as people may not wish, or be in a position, to marry. One of the couple may be unwilling to marry leaving the other partner with the choice of putting up with the position or leaving the relationship. Mediation is not a panacea either as if partners can't reach agreement then their legal options are limited under the current system."