WJM Family Lawyer Welcomes New Legal Guidance on Cohabiting Couples

A leading family law solicitor has welcomed new guidance for cohabiting couples in Scotland which will entitle partners to financial support in the event of separation.

Tom Quail, head of the family law team at Wright, Johnston & Mackenzie, believes the recommendations made by the Scottish Law Commission in its latest report will simplify the law while offering a broader range of outcomes for unmarried couples whose relationships break down.

Tom, who specialises in areas including divorce, adoption, and custody arrangements, commented following the publication of the Scottish Law Commission’s report on cohabitation, which makes a series of suggestions to improve and update the law.

Tom said: “This area of the law has long been criticised for being outdated, overly complicated, and unrepresentative of the growing numbers of couples in Scotland who choose not to get married, so this report and its recommendations are very welcome.

“I think the key takeaways from the report are, firstly, that parties in an unmarried, cohabiting couple could be required to provide short-term financial support for former partners, and that a clearer formula is required for judges to apply to calculate levels of financial support.

“At present, the law around financial support for cohabiting couples is unclear, and this report reinforces how important it is to have clear guidance enshrined in law.”

Now the report has been published, the recommendations will go to the Scottish Parliament before the Bill is updated, which could take until 2025.

Tom continued: “In some countries such as Australia and New Zealand, couples who are cohabitants largely experience the same legal rights as married couples if they have lived together for a certain period of time, and many expected the Scottish Law Commission to advise a similar approach to be taken in Scotland.

“However, there are plenty of couples who make the choice not to marry, and it’s important for the law to recognise their decision to do so as much as those who choose to get married. If the law makes the rights the same for unmarried couples, they are effectively eliminating those couples’ choices to be unmarried.

“I welcome these findings and believe updated law in this area is vital to better represent how people are living in the modern world.”

Inflation bites twice on separated families

As the cost of living crisis hits households across the country, separated families may need to revisit maintenance arrangements agreed at a time when inflation was subdued.

When married couples split spouses owe a duty of financial support to one another. This will often see the higher earning party provide maintenance or aliment in the form of monthly payments to the spouse who requires support to meet their needs.

Typically, both spouses will draw up a schedule of income and outgoings to assess the needs of the receiving party and the resources of the paying party to meet any shortfall. Frequently where children are involved the dual obligations to maintain a spouse and children will be wrapped up in one payment, or perhaps by continuing to meet certain costs of the household where the children mainly reside, such as the mortgage and council tax.

If the arrangement or court order was reached based on costs which have since spiralled it may be possible to seek to vary the level of aliment to be paid by reference to a new schedule of outgoings.

However, if the paying party also has mounting fuel and food costs, but without a comparable increase in their available income, they may argue they do not have the resources to offset the rising costs of living which impacts on both households.

Some long-term maintenance arrangements will include reference to regular review with reference to the Retail Prices Index or Consumer Prices Index. This can shelter the receiving party from inflationary pressures.

Financial support is usually one of the most pressing issues to be agreed when couples separate. Agreements reached in the early days after separation can have important consequences further down the line and early advice on your financial requirements or obligations can be crucial in setting the stage for the longer term arrangements which follow.

If you have any questions about financial support or child maintenance following a separation, please contact our Roger Mackenzie at rlm@wjm.co.uk

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