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Scottish cohabitation ruling has “lessons to be learned” for England

A unanimous ruling by the UK Supreme Court in a Scottish cohabitation case has clear lessons for the way the law should be reformed in England and Wales, Lady Hale (one of the judges ruling on the case) has said.

In supporting the judgment in Gow v Grant, Lady Hale commented on the disparity between the Scottish legislation introduced five years ago, and the legal position in England and Wales. She emphasised the research which stated, “The Act has undoubtedly achieved a lot for Scottish cohabitants and their children,” adding: “English and Welsh cohabitants and children deserve no less.”

The court went on to say that the “main lesson” from the case was that a remedy such as that provided in Scotland “is both practicable and fair.”

However, individuals who make a claim when they stop living together should not expect to receive as much as a spouse would on the breakdown of their marriage but they should expect the gains and losses flowing from their relationship to be redressed.

Resolution, which represents 6,500 family law professionals in England and Wales, said that, although one in six couples currently live together without being married, huge numbers of them face distress should they separate. This is because of out-of-date laws surrounding cohabitation, combined with popular misconceptions that still exist.

Resolution is calling for new laws in England and Wales, for couples who have lived together for five years or more – or for less time in cases of exceptional hardship. For cohabiting couples with children, the law would offer protection regardless of how long they have lived together.

These couples would have an automatic right to apply for certain financial orders if they separate. If a couple wished to opt out of this provision, they could do so by way of a written agreement. Such a law would prevent injustice by allowing the courts to recognise a cohabiting relationship and decide on an outcome that is fair and reasonable.

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