No longer living together: how does Scots cohabitation law work in practice?

Transcription

1 Centre for Research on Famiies and Reationships Briefing 51 October 2010 No onger iving together: how does Scots cohabitation aw work in practice? crfr In response to the greater diversity of famiy ife in Scotand, the Famiy Law (Scotand) Act 2006 gives some recognition to peope who ive together without marriage or civi partnership and provides imited financia remedies at the end of cohabiting reationships. Whie these provisions do not give peope who ive together the same rights as spouses or civi partners, they create a midde way between that protection and none at a. It recognises unmarried cohabitants and gives some protection to those who are economicay vunerabe when the reationship ends. This briefing presents research findings from the first study to review how these new provisions work in practice. The research is based on famiy awyers experiences and views of the cohabitation provisions of the 2006 Act. Key points Soicitors gave the cohabitation provisions a cautious wecome, seeing both benefits and unfufied potentia. The Act has created financia remedies where none previousy existed, recognising the vaue of financia contributions and the economic sacrifices that often arise from cohabitants homemaking and chidcare activities. Nevertheess, these provisions have both theoretica and operationa probems, some intrinsic and others eary days effects The number of cases famiy awyers have deat with, roughy 1000, is we beow the ikey number of cohabiting reationships that end in separation or an intestate death. A much smaer number have made demands on the courts or on ega aid, which indicates that the Act has not imposed an inordinate burden on the Scottish famiy justice system Most cases famiy awyers deat with concerned separation invoving coupes who were on average oder and weathier, and whose cohabitations were onger than the genera popuation of cohabitants. Very few cases invoved short reationships, despite the ack of any minimum duration requirement for cohabitants reationships to fa within the Act Given the estimated scae of use of the egisation and the reported difficuties cients had in understanding the provisions and the advice they were given, there is a need for pubic ega education, directed towards potentia users of the egisation The width of the discretion avaiabe under both sections 28 and 29 of the Act, the absence of any guidance regarding the objective of financia provision under section 29 and the probems that can be experienced in attempting to prove and quantify economic advantage and disadvantage, eave cients and their advisers uncertain about their position The time imits for bringing a caim create further barriers and unnecessariy increases demands on the courts by effectivey requiring awyers to raise and immediatey sist (suspend) actions, potentiay exacerbating or creating confict Three fifths of cases took under one year to resove. Longer cases were more ikey to invove succession (death of a partner), home owners, or another dispute over chid residence or contact, and were more ikey to require court invovement Lessons from the Scottish experience can inform any reform of the aw in Engand and Waes in reation to cohabitations that end in separation Centre for Research on Famiies and Reationships The University of Edinburgh, 23 Bucceuch Pace, Edinburgh EH8 9LN Te: Fax: E-mai: crfr@ed.ac.uk crfr centre for research on famiies and reationships

2 No onger iving together: how does Scots cohabitation aw work in practice? Background: the socia and ega context In Scotand, more peope now ive together without being married. Aso, many more chidren are born to parents who are not married (about haf in 2008) than in the past. In 2006, about one quarter of unmarried aduts aged 16 to 59 were cohabiting and, in 2008, there were about 370,000 cohabiting aduts in Scotand. Cohabitation is more prevaent amongst younger age groups, with 57% of a cohabitants aged 34 or ess and 81% aged 44 or ess. Whie many of the differences between cohabiting and married peope are due to their age differences, compared with spouses cohabitants: have ower incomes receive more income from benefits are ess ikey to be home owners are more ikey to be tenants are ess ikey to have chidren, and if they do have chidren, have smaer famiy sizes In response to this change, the Famiy Law (Scotand) Act 2006 introduced new remedies for cohabitants whose reationships end either by separation or by death. Before the 2006 Act, the financia remedies potentiay avaiabe to a cohabitant foowing separation or on death were very imited and often difficut to secure. Many peope beieved, wrongy, in the common aw marriage myth: that after a period of iving together, cohabitants had marriage-type rights to financia provision on separation or death. The study The project focused on the experiences and perspectives of famiy awyers on the use of the cohabitation provisions of the Act during its first three years of operation. It aso incuded a review of a of the reported cases invoving those provisions. The study incuded: a survey of 97 famiy awyers, mainy members of the Famiy Law Association, using an onine questionnaire semi-structured in-depth teephone interviews with 19 famiy awyers whose questionnaire responses raised issues to be pursued in greater depth The survey asked respondents about themseves, their caseoads, their ast competed cohabitation case, foowed by questions about their wider views of these provisions. The in-depth interviews had some personaised eements and were designed to seek eaboration of issues they raised, such as refections on which aspects of the provisions worked we or did not. Each interviewee was asked to comment on a vignette invoving either a separation or death, depending upon which of these was their ast case. The vignettes aowed interviewees to refect on a common set of circumstances. Cohabitation provisions of the Famiy Law (Scotand) Act 2006 summarised Section 25 defines a cohabitant as either member of a coupe who ive or ived together as if they were husband and wife (if of the opposite sex) or as if they were civi partners (if of the same sex). In determining whether two peope are cohabitants, the court must consider the nature and duration of their reationship and any financia arrangements between them during that period. No minimum period of cohabitation is stipuated in order to use the Act. Section 26 provides for the division of househod goods acquired during cohabitation (but not before it), except for money, securities, cars and pets. Except for goods acquired as gifts or by inheritance, it presumes joint ownership uness there is proof that the parties contributed to their acquisition in unequa shares. Section 27 provides that assets (other than the famiy home) acquired from savings made from a housekeeping aowance paid by one cohabitant to the other wi be owned in equa shares, in the absence of some other agreement. Section 28 gives the courts power to order a capita sum foowing separation, either to assist with the ongoing economic burden of caring for the cohabitants chidren or to correct any imbaance in economic advantage and disadvantage between the parties. Any such caim must be brought within one year of the separation. Section 29 appies if a cohabitant dies intestate (that is, without a wi). A surviving cohabitant may bring a caim within six months of the death for a share of the estate. The court has a wide discretion to order a capita sum or the transfer of property from that estate. It is possibe under the genera aw for cohabitants to opt out of these provisions by making agreements at any time that waive their rights to bring caims under the Act.

3 No onger iving together: how does Scots cohabitation aw work in practice? Vignettes There were two vignettes, one with a succession probem, the other on separation, aowing a comparison of how different soicitors approached a common set of facts and what difference the 2006 Act made in those particuar circumstances. Succession. Eeanor s partner David died 3 months earier in a car accident, and she has just discovered he eft no wi, and had not actuay divorced his wife. They had ived together for 12 years and at the time of David s death were iving in a arge house that David owned and financed with one chid from his marriage, aged 17, and their two chidren, aged 8 and 6. David, a hospita doctor, was the main earner, athough Eeanor worked part time. Separation. Janet and Kenneth, who have separated, have ived together for about seven years and have twins aged 4. They ive in a house that Kenneth owns, but to which Janet has contributed substantiay. Janet supported the coupe when Kenneth had to retrain after being made redundant but she gave up her job to ook after their chidren and Kenneth has been the soe earner. The findings Lawyers think provisions are better, but not perfect Some soicitors fet the provisions went too far estabishing rights for peope who ive together. I m personay very much against cohabitants having any rights at a, quite franky. I think if they want rights they shoud get married. However, the Act was seen by a number of soicitors as being better than what had previousy existed. It s good that there has been some kind of recognition of how our socia structure has changed. At the most basic eve, the provisions were wecomed because they acknowedged the fact that cohabitants have recognised rights. The provisions offered a foundation for negotiation between the parties since they provided a massive bargaining too. [The Act] does give peope a bit, a bit of a ifeine if they re the weaker party certainy. Whie most soicitors broady wecomed having some financia remedies avaiabe for cohabitants whose reationships end, they agreed on the whoe with the egisation s approach that these shoud be more imited than those avaiabe at the end of a marriage or civi partnership. I wecome the fact that it didn t try and go as far as marriage did. It s right that those that have chosen not to get married shoud not have the same rights as those who are married and it is absoutey correct, from a socia poicy point of view, that there is a difference in the financia positions of those that are married and those that are not. However, despite genera support, awyers fet the Act coud be better. I suppose I wecome the fact that there is recognition of an entitement on the part of cohabitees It coud have been done better, as anything coud aways be done better. After engthy cohabitations, the Act was seen as having the potentia to correct an unfairness on separation. However, this interviewee, who saw such potentia, quaified the comment: I think it s very, very difficut to use in practice. Some soicitors found that the imited range of remedies, in particuar, the ack of powers to transfer property or (apparenty) to order periodica aowances for chid-care, was probematic. Whist meeting the poicy objective of imiting the scope of rights avaiabe to cohabitants, awyers and the courts are eft with ony the bunt instrument of capita awards to achieve a cean financia break and an equitabe settement. Nature of cases Most of the ast cases reported in the questionnaires invoved separation (79%), rather than the death of a partner. About three-quarters (73%) invoved cohabitations of 6 years or more, consideraby onger than the average duration of cohabitations in the genera popuation. A arge minority of cases invoved dependent chidren (44%). The great majority of cients and the other party were in paid empoyment, egay represented, homeowners, and aged over 35. A minority of cases were supported by ega aid in whoe or in part. Just over one-third of these cases were setted without court invovement, a sighty higher number (42%) were resoved with court invovement. This high figure is ikey to be argey due to having raised, and then immediatey stopped the court action, in many cases because of time imits imposed by the egisation.

4 No onger iving together: how does Scots cohabitation aw work in practice? Three-fifths of cases took a year or ess between first cient contact and cose of the case. The cases that took onger to resove were more ikey to invove: the death of a partner cients who were home owners ega aid another dispute over residence or contact court invovement with resoution Limited use of the provisions Based on repies to a question on the size of their reevant caseoads since 2006, we can very roughy estimate that 1000 cohabitation cases have come to the attention of famiy awyers since the Act came into force. The numbers invoving substantia attention of the courts is far ess. This number is we beow the ikey number of cohabiting reationships that end in separation or death and the provisions therefore appear not to have imposed an inordinate burden on the Scottish famiy justice system. The apparenty imited use of the provisions may be due to severa reasons, such as: coupes having no property to redistribute the imited nature of the provisions ignorance about the provisions or their existence redistribution being agreed by other means, e.g. joint ownership or deceased s wi redistribution being agreed privatey by the coupe, without soicitors, possiby with each partner eaving with their own property and assets after a short cohabitation Cients imited knowedge of provisions Famiy awyers reported that many cients had difficuty in understanding the information they were given and, to a sighty esser extent, the advice provided. Many soicitors were concerned that the eve of widespread ignorance of the provisions was profound, because if the pubic don t know about it, they not caim. Another soicitor commented: The big probem in [the] cohabitation statute pubic education. Probems quantifying economic advantage and disadvantage The interpretation, proof and quantification of economic advantage and disadvantage and the width of the court s discretion were the top two probems with the cohabitation provisions according to the soicitors invoved in the study. Many commented on the ack of guidance and the practica difficuties in estabishing a caim based on section 28 that requires quantifying the economic advantage and disadvantage of each cohabitant. That, combined with the wide discretion avaiabe to the courts, made it difficut for them to advise their cients. Severa interreated issues made quantifying the baance of economic advantage and disadvantage difficut to pursue to a successfu concusion. They incude: expaining the concept to cients reating it to their situation agreeing what constitutes an advantage and a disadvantage proving the caim These probems coud potentiay improve to some extent as soicitors gain further experience and as case aw deveops. Lawyers Refections: separation vignette The separation vignette showed the difficuty famiy awyers face in using section 28. This is particuary true in ow-vaue cases where there was itte money about which to argue and there was a need to manage cients expectations. Addressing the outcome as it woud have been before 2006, one soicitor said: I woud have been hanging my head when the woman eft and thinking, Oh dear, what can we possiby do for this woman? Very, very itte to be honest. It was generay thought that Janet was in a much better position as a resut of the 2006 Act and there was some basis upon which to negotiate a settement. However, some interviewees considered her situation now to be ony a bit better: It s very usefu that we ve got an Act, but it s not a major payer here. Lawyers were practicay oriented, mindfu of Janet s wefare benefit entitement, ega aid issues, and the affordabiity for both parties of various housing options and the fate of the home. Negotiation was ceary preferred to itigation as a more certain and cost-effective path and better for the chidren: Peope are setting because they know what they re getting, rather than risking going to court. The focus for most was on achieving a chid-centred soution that incuded chid support, perhaps a sum towards chidcare costs, and the father s continuing invovement in the chidren s ives, but recognising that it woud probaby be necessary for the famiy home to be sod, and for Janet and the chidren to move to something more modest, quite possiby rented.

5 No onger iving together: how does Scots cohabitation aw work in practice? In-depth interviews with famiy awyers indicated that whie there remains a eve of uncertainty about its operation, many thought that it woud become more effective over time and with experience and more case aw. Some soicitors saw the width of the court s discretion in a mixed ight. For exampe, the section 28 provision of a genera capita sum payment [was] very wooy but had the advantage of affording a ot of fexibiity to the court. Aso, in separation cases invoving chidren, some soicitors thought the provisions were hepfu for making caims for a share of future chid care costs. [see Lawyers Refections: separation vignette] Soicitors aso noted that the guidance as to how to quantify a caim under section 29 coud be cearer. The section 27 housekeeping aowance was seen as archaic. Lawyers Refections: succession vignette In the succession vignette, it was widey fet that the impending time bar for a caim under s 29 woud amost inevitaby mean having to raise and then sist an action immediatey, since it was unikey that a necessary information coud be gathered (especiay from the pension provider) or negotiation undertaken within the three months remaining unti the six month cut off point but the aim, having secured Eeanor s position with a raise and sist, woud be to negotiate a settement. This vignette aso iustrated the potentia confict of interest between a surviving cohabitant and her chidren, who woud aso be entited to inherit part of the estate, and the difficuty in having the surviving cohabitant act as executor for the estate. Six month time imit is too short Whie most soicitors appreciated that time imits for caiming were needed, there was widespread unease about the shortness of the time imits in both separation and succession cases. The time imits had the unintended consequence of causing more itigation than was ikey with a onger period. Of the two, the time imits for succession cases caused most concern. Grieving may take onger than six months, a bady injured surviving cohabitant may miss the deadine, and it is impossibe to extend the six month imit. Six months is a very short period of time to instigate action and it has meant you ve had to put an action into court and then just immediatey sist [stop] it, whist you consider to negotiate. I think it s unhepfu, sometimes with a death it s very sensitive and you are taking about hav[ing] to raise a court action. The time imit in separation cases can aso ead to cases being raised then stopped to aow negotiation to continue whist preserving the possibiity of going to court shoud negotiations fai. A engthier time imit woud give cients more time to attempt negotiation without having to worry about time running out and so without appearing to raise the stakes by initiating a court action. Severa respondents aso mentioned that estabishing the date of separation was probematic. [see Lawyers Refections: succession vignette] Impications for Scotand Have the cohabitation provisions of the 2006 Act met their poicy objectives? Are there unintended consequences, and if so, do these impede the reaisation of the particuar poicy objectives or other poicy objectives? The Act has undoubtedy achieved a ot for Scottish cohabitants and their chidren. It has created financia remedies where none previousy existed, recognising the vaue of financia contributions and the economic sacrifices that often arise from cohabitants homemaking and chidcare activities. The Act refects opinion in Scotand that cohabitation shoud not be treated in the same way as marriage, but can hep to prevent injustices or hardships that may arise, especiay if chidren are invoved. Our findings suggest that, ess than four years in, the Act s main strengths ie principay at a normative eve, and aw and practice under the 2006 Act are sti some way from achieving the stated objectives. Nevertheess, the Act provides practitioners and their cients with a potentia caim with which to enter into negotiations for settement when cohabitation ends, whether by death or separation. The absence of a minimum duration requirement for eigibiity to bring a caim either on separation or death has not resuted in a food of caims foowing short reationships; very few of respondents ast cases invoved reationships of under two years. However, this research has identified various operationa probems that prevent many from reaising the benefits which it was intended to confer. These difficuties can be broady paced in two categories, with some having eements of both: Intrinsic probems: factors such as the time imits and imited range of remedies which arise from the scheme as currenty enacted which can ony be ameiorated by reform of the primary egisation Eary days effects: probems being fet now which may ameiorate over time as the Act beds down, practitioners become more famiiar with its operation, and the apparenty wide discretion created by the Act is reined in by cearer judicia guidance, in particuar on the operation of the economic advantage and disadvantage principe and the s 29 discretion

6 No onger iving together: how does Scots cohabitation aw work in practice? Impications for Engand and Waes There have been remedies for cohabitants on death in Engand and Waes since But what, if anything, can recent Scottish experience suggest for any future reform in Engand and Waes reating to separation? In ight of widey acknowedged criticisms of the current aw, various recommendations have been made for statutory financia remedies between cohabitants on separation, recenty by the Law Commission and in two Private Members Bis. As with any poicy earning, caution is needed in drawing concusions for Engand and Waes from the Scottish experience owing to the differences between the 2006 Act and the schemes advocated for Engand and Waes, together with the different ega frameworks in which they woud operate. However, we think these findings offer some messages that may assist the formuation and execution of poicy south of the border: A time imit of one year from separation to bring a caim gives rise to unintended and undesirabe consequences, making appicants fee obiged to start (but then immediatey suspend) a court action to avoid time running out whie attempts are made to use aternative dispute resoution procedures; this burdens court administration and other parts of the famiy justice system, incuding ega aid The imited range of orders avaiabe under the 2006 Act, whist consistent with the intended imited scope of the egisation, can (in some circumstances) resut in unfairness to both parties Whatever basis for reief is chosen for a new scheme, it brings its own pros and cons. The operation of any principe, such as economic advantage and disadvantage, which depends on individua circumstances and their economic effect necessariy demands a particuar type of evidence which may not aways be easy to adduce. But if simiar principes were adopted as part of any reform in Engand and Waes, cearer and more comprehensive statutory drafting woud go some way to avoid the uncertainty currenty being experienced in operating the 2006 Act s principes Despite the ack of minimum duration requirement in the 2006 Act, there has been no food of cases in the first three or so years of the Act s operation. Imposing a minimum duration of two years woud have made hardy any difference to the number of potentia cases seen by soicitors. The Scottish evidence to date suggests that the introduction of broady simiar provisions in Engand and Waes woud not pace significant additiona demands on court and ega aid resources contact crfr Authors This briefing was written by Fran Wasoff, Jo Mies and Enid Mordaunt and edited by Jennifer Fueckiger. The study, funded by the Nuffied Foundation, was carried out by Fran Wasoff, Centre for Research on Famiies and Reationships, The University of Edinburgh, Jo Mies, Trinity Coege, University of Cambridge and Enid Mordaunt, Centre for Research on Famiies and Reationships, The University of Edinburgh. The fu report can be read and downoaded: crfr.ac.uk/researchprojects/rp_cohabitation.htm The University of Edinburgh is a charitabe body, registered in Scotand, with registration number SC

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8 contact crfr Centre for Research on Famiies and Reationships For a fu ist of Research Briefings visit our website The University of Edinburgh, 23 Bucceuch Pace, Edinburgh EH8 9LN Te: Fax: E-mai: crfr@ed.ac.uk