The Scottish Law Commission has published a new Discussion Paper on Cohabitation (DP 170), considering the financial remedies available between cohabitants on separation in Scots law as part of its Family Law reform agenda.
The paper draws extensively on earlier empirical work by Joanna Miles, undertaken with Fran Wasoff and Enid Mordaunt in 2009-10, reviewing the first three years’ operation of the then new cohabitation provisions in the Family Law (Scotland) Act 2006. The Wasoff, Miles and Mordaunt project was the first empirical study of the functioning of the Family Law (Scotland) Act 2006, directed at understanding the operation of the cohabitation provisions of the Act. Particular consideration was given to the experiences and perspectives of legal practitioners and other selected family law professionals in their use of the provisions in the first three years of the legislation, drawing on a postal questionnaire and in-depth interviews. The project examined the nature and frequency of the use of the provisions, the circumstances in which they are used, the type of issues covered, the cost and effect, and assessed the benefits and difficulties the provisions have brought for both potential pursuers and defenders.
The Commission’s new consultation exercise explores a number of problems with the 2006 Act, many of them flagged by the Wasoff, Miles and Mordaunt research.