Reforming family law – the case of cohabitation: ‘things may not work out as you expect’

Abstract

This article explores the findings of a recent research study examining the first three years' operation of new financial remedies between cohabitants following separation in Scots law in order to illustrate the phenomenon of unintended consequences arising from law reform, family law reform in particular.

Keywords:

• law reform
• family law and policy
• cohabitation
• separation
• financial remedies
• private ordering
• unintended consequences
• time limits

Acknowledgement

The empirical research on which this article is based was supported by the Nuffield Foundation.

Notes

1. By contrast with the position in England and Wales, in Scotland, establishing irretrievable marital breakdown by reference to a period of separation has for some time been used in the great majority of divorces. For example, in 2009–2010, 85% of divorces cited separation grounds (Scottish Government 2010, Table 2a), up from 80% in 2002 (Scottish Government 2002). This may be due, at least in part, to the availability of a simplified (and much cheaper) divorce procedure for uncontested divorces based on separation which do not involve children under 16 or any financial claims (see Scottish Court Service 2007). Since the Family Law (Scotland) Act 2006 came into force, the non-cohabitation periods required to establish the irretrievable breakdown of a marriage have been reduced from two years with consent to one year with consent, and (in non-consensual cases) from five years to two years.

2. Contrast the bar on divorce in the first year of marriage in England and Wales: Matrimonial Causes Act 1973, s 3; although the remedy of judicial separation and most of the courts' powers to award financial relief are available in that first year.

3. The history of this provision is a little more complicated than that of the time bar. For discussion, see Wasoff et al. 2010, p. 128.

4. See, for example, the approach taken by Lord Matthews in CM v. ST [2008] CSOH 125, discussed in Wasoff et al. 2010, Appendix 4, along with other cases decided under the 2006 Act up to March 2010. But see now Gow v Grant [2012] UKSC 29.

5. See also the contribution to be made prospectively to law reform design by both normative and positivistic economic analysis of law, particularly in identifying potential unintended consequences of a given policy (Dnes 2009).