Learning from experience

Proposals to introduce rights for cohabitants have been the subject of consideration in England for several years now. The Law Commission's proposals were effectively shelved by the UK government and now Private Members' Bills are being considered in both the House of Commons and the House of Lords.

In the Commons, the Cohabitation Bill is tabled for a second reading, while a House of Lords committee has been debating matters such as the prescribed minimum period of cohabitation required for making a claim and whether judges should be afforded discretion to waive that. The lords have been concerned not to open the floodgates, wishing to restrict claims to only the most deserving.

In contrast, in Scotland the Executive had little concern about floodgates when they introduced cohabitants' rights in the Family Law (Scotland) Act 2006. Is there anything that can be learned from the Scottish experience?

In many respects, what is being proposed in England is similar to what is already provided for in Scotland in relation to claims made during the lifetime of both parties.

In Scotland, two people are regarded as cohabitants if they are living together as husband and wife or as civil partners. The court must have regard to the length of the cohabitation, the nature of the relationship during the cohabitation and any financial arrangements in place during that time. Unlike the English proposals, there is no minimum period of cohabitation. Nor are geographical restrictions placed on the cohabitation. A Scottish court can have jurisdiction to hear a claim where parties have cohabited in England, Wales or anywhere else in the world. Jurisdiction is founded in the same way as for an action of divorce or dissolution. The Domicile and Matrimonial Proceedings Act 1973 does not currently regulate competing claims for financial provision resulting from cohabitation within the UK.

In Scotland, cohabitants' claims must be made within a year of the date of the parties' separation and there is provision for three types of claim:

1 For a capital sum for the cohabitant's own benefit and/or to reflect the additional burden of caring for children. Maintenance cannot be claimed. The capital sum for the cohabitant's own benefit is akin to a compensatory payment. The court must take account of contributions, financial and non-financial, made by each party in the interests of the family to ascertain whether a party has overall been economically disadvantaged. A capital sum to reflect the additional burden of caring for children could take account of things such as future childcare costs and housing costs.

2 For an equal share of money and property deriving from any allowance made by either party for joint household expenses or similar purposes and any property acquired out of that. This can cover funds held in a joint account and property acquired out of such an account (but 'property' here excludes the sole main residence).

3 For an equal sharing of household goods acquired during the cohabitation.

The intention in England is that all cohabiting couples will be covered by the proposed new law unless they enter into an 'opt-out agreement', the requirements of which are likely to be onerous. In Scotland, a Scottish court will respect a Cohabitation Agreement, which has only basic requirements.

Uncertain prospects

There have been very few cohabitation claims considered by the courts in Scotland and only one in which a financial award was granted. Even then, the award was for a paltry sum, to cover only a share of the estimated cost of future childcare. However, even at this early stage, two trends appear to be emerging:

• The courts will be slow to make awards in circumstances other than where there is a clear, quantifiable overall economic disadvantage suffered which can be clearly demonstrated to the court.
• The levels of awards made are unlikely to be generous in comparison with some other jurisdictions that have cohabitants' rights.

Other than in the most deserving and obvious cases where economic disadvantage has been suffered, Scottish solicitors are reluctant to encourage clients to spend considerable sums on litigation; as in the less clear cut cases the prospects of success will be uncertain and the sums awarded are likely to be ungenerous.

Practical difficulties can also arise in obtaining the necessary historical data required to further a claim. The case law so far makes it clear that both financial and non-financial contributions need to be quantified and values placed upon them. In cases where the period of cohabitation stretches back over many years it can prove difficult to trace, identify and demonstrate financial contributions in particular. Most people do not keep detailed historical records nor do financial institutions they have been involved with. The limited basis for claims and these difficulties have meant that notwithstanding the absence of a prescribed minimum period of cohabitation, there has been only a trickle of cohabitants' claims in Scotland.

The House of Lords committee debating this Bill has been conscious of the difficult balancing act to be had in the introduction of cohabitants' rights in England and Wales; giving rights to those deserving former cohabitants but at the same time avoiding the potential for nuisance claims from disgruntled former partners after only a short period of cohabitation '“ which can easily turn into a form of harassment.

The Scottish experience, however, suggests that if the UK Parliament does adopt a similar regime to that in Scotland, it can have confidence that it will not be opening the floodgates and only the most deserving will benefit.