Scottish Government

Chapter Two marriage and cohabitation

2.1 Cohabitation in Scotland and the UK has become commonplace, with a pattern typical of western post-industrial societies. Among UK women under 50 years, the proportion experiencing cohabitation at some time in their lives more than trebled between 1976 and 1998, from 9% to 29% (Morrison et al 2004). Cohabiting couples either marry or split up within a relatively short time, with a median duration of two to three years. However, even though cohabitation as an unmarried union is typically short-lived, increasing numbers of people are cohabiting at some stage in their lives, with relatively higher levels of cohabitation among younger people. The number of households with cohabiting couples and children is increasing; in 2001, 38% of cohabiting couples lived with dependent children, either of their own relationship or from a previous relationship and 10% of children in Scotland live in a household with a cohabiting couple (Scottish Executive 2005, para 55).

2.2 Cohabitation is increasingly recognised in various legal contexts and the law relating to cohabitation is gradually accumulating, for example, in respect of parent and child, domestic violence and occupancy of the family home. There is also evidence of confusion by the public generally over specific aspects of the status of cohabiting couples and unmarried fathers in Scotland, and in particular, about the extent of legal provision in the event of relationship breakdown or the death of a partner.

2.3 The reform of family law regulating the end of adult intimate partnerships either by death or separation is rapidly developing, with a policy direction that begins to unfold in 1992 with the Scottish Law Commission consultation document, Reform of Family Law 135. It recommended that no reform of the law on cohabitation should 'undermine marriage nor undermine the freedom of those who deliberately opted out of marriage [but to] remedy situations [that are] harsh and unfair (1999; para 4.31). Consequently, it recommended that within one year of the termination of a cohabitation, either party could apply to the court for financial provision as under section 9(1)(b) of the Family Law (Scotland) Act 1985 to take account of economic advantage derived by one party from contributions by the other, or to compensate for economic disadvantage. It further provisionally suggested, along the lines of the Family Law (Scotland) Act 1985, that the courts should have the power to award a capital sum, including a deferred capital sum or payment by installments.

2.4 Public consultation followed and opinion was divided in the responses, with a narrow majority in favour of having some limited form of such compensation. After a lull of several years, in 1999, the Scottish Office/Scottish Executive published a family law Green Paper, Improving Scottish Family Law, which opted for limited reform solely to provide a small range of legal remedies for 'harsh and unfair' circumstances, and to remove some anomalies, as recommended by the Scottish Law Commission in 1992 This included discretionary provision for financial provision on the termination of a cohabitation by separation or death, but explicitly rejecting any general support obligation between cohabitees, including any automatic rights of succession. A further period of consultation followed, and the consultation responses that expressed a view on financial provision supported the proposals. The next part of the story is the Scottish Executive White Paper, Parents and Children (2000), which kept to the original policy direction of discretionary financial provision on the termination of a cohabitation, either by separation or death. The stated objective of this policy is "to overcome the difficulties being faced by unmarried couples and also to ease the position for children born of unmarried parents. Where a partner is left alone to care for children, whether as a result of separation or bereavement, the law should recognise the economic dependence that the lone parent may have had on the other partner."

2.5 The proposal in the White Paper was that:

"A cohabitant whose relationship has terminated will be able to apply to a court for financial provision from the ex-partner where there has been economic disadvantage. Provision will be made for cohabitants whose partners have died to claim a share out of their partner's estate" (Scottish Executive 2000; chapter 7) .

2.6 A further stage of consultation followed and legislation to implement the White Paper was introduced in February 2005 as the Family Law (Scotland) Bill, and at the time of writing it is in its Committee stage. In relation to its provisions on cohabitation, it has 'the policy objective to introduce greater certainty, fairness and clarity into the law by establishing a firm statutory foundation for disentangling the shared life of cohabitants when their relationship ends.' (Scottish Executive 2005, para 64.) It goes on in para 67 to state: 'the intention is to create legal safeguards for the protection of cohabitants in longstanding and enduring relationships, not to cater for short term cohabitation.'

2.7 Thus it appears that in these reforms the law on cohabitation is moving in the direction of limited regulation based on the need to provide protection for an economically vulnerable partner, but that nonetheless falls short of the status of marriage. It has a limited objective and set of principles that draws on the framework for financial provision on divorce, without opting for the entire framework and makes new remedies available to cohabitees not shared by other unrelated adults. The discretion to be given to the courts to make decisions on financial provision at the end of cohabitation is broad, allowing for 'fair account' to be taken of any economic advantages and disadvantages to either party or to children of the relationship. The courts are also given a wide discretion to decide when such obligations arise.

2.8 The family module sought to obtain information about public knowledge of the present law, prior to the introduction of the important law reform outlined above, and attitudes towards cohabitation, in comparison to marriage. Therefore the module began with a married couple scenario, to set the scene and provide a basis for comparison, followed by several scenarios involving unmarried couples, as shown in Figure 2.1.

Married couples: attitudes and knowledge

2.9 The public's views about what the economic obligations between separating married partners ought to be are divided: about equally between those who think an economically disadvantaged spouse without children should be able to make claims against the other if a long-standing relationship breaks down. As Table 1 below shows, 50% of respondents think the economically weaker partner should be able to claim, and 47% do not. Table 2 shows that there is widespread misunderstanding of the actual legal position in which the Family Law (Scotland) Act 1985 gives former spouses a right to claim support: 61% think spouses have such a right (although only 17% were firm in their understanding), and 39% either didn't know or erroneously thought not.

2.10 Comparing respondents' views with their knowledge of the law, we find that those who correctly understand the law are slightly more likely (55%) than those whose knowledge of the law is incorrect (45%) to think the economically weaker partner should be able to make claims on the other.

Unmarried couples: attitudes and knowledge

2.11 When asked the same question as in Table 1 but for unmarried couples, as Table 3 shows, 40% thought there should be a support obligation, and 57% thought not. Thus there is weaker, but only slightly weaker, endorsement for a support obligation between long standing cohabiting couples who separate, even if children are not present. Table 4 shows that just over two thirds of respondents knew that cohabitees have fewer such rights.

2.12 Again, comparing respondents' views with their knowledge of the law, we find that those who correctly understand the law are slightly less likely (38%) than those whose knowledge of the law is incorrect (50%) to think an economically weaker cohabiting partner should be able to make claims on the other. Thus, in the case of both married and unmarried partners, those with a correct knowledge of the law are more likely to agree with the legal norm than others without accurate knowledge.

2.13 When asked about whether rights to pensions and inheritance tax concessions that apply to married partners when one spouse dies should also apply to cohabitees in similar circumstances, respondents reported strong support for greater parity of treatment, as in Tables 2.5 and 2.6, with 87% agreeing that a surviving cohabitee should have the same entitlement to an occupational pension, and 76% agreeing a cohabitee should be similarly exempt from payment of inheritance tax on the couple's home. There is also strong support for parity of treatment with regard to a shared home for a cohabitee whose partner has died intestate, with 89% of respondents stating that person should be treated in the same way as a married person (Table 2.7). However, this is a slightly lower level of agreement than was found in the 2000 Scottish Social Attitudes Survey (92%) when the same question was asked.

2.14 There is growing awareness that a cohabitee's position in law is weaker than that of a married partner, as a comparison with data in the 2000 Scottish Social Attitudes Survey shows (Table 2.8). Two thirds of respondents in 2004 knew that a cohabitee's rights were weaker, compared to 56% in 2000. However, see chapter 6 (and Table 6.5) for data about the prevalence of the belief that unmarried couples who live together for some time have a 'common law marriage' giving them the same legal rights as married couples.

2.15 There is strong support for unmarried fathers having the same parental rights as married fathers, as evidenced by replies to the question, in Table 2.9, about an unmarried father deciding on medical treatment for his child, where 97% thought unmarried fathers should have the same rights, slightly higher than in 2000 when the same question was asked. There is increasing awareness that unmarried fathers, at present, do not have such a right. As Table 2.10 shows, 53% of respondents were correctly aware of this, compared to 40% in 2000. Those respondents whose knowledge of the law was correct were only slightly less likely (96%) than those whose knowledge of the law was incorrect (99%) to think an unmarried father (95%) should be able to consent to a child's medical treatment. Thus, while there was overwhelming support for an unmarried father to have this parental responsibility and right, as earlier, those with a correct knowledge of the law were slightly more likely to agree with the legal norm than others without accurate knowledge.

How do knowledge and attitudes vary across the population?

2.16 The preceding evidence reports the views of the population as a whole. We now look at how those views vary within the population according to major social divisions such as age, gender, social class and educational level. For the purpose of this analysis, we classified respondents into two or three categories for each of these key socio-demographic variables, as in Figure 1.1 above.

2.17 In relation to attitudes about whether, in a childless relationship that has broken down, an economically weaker partner should be able to claim financial support from the other partner, we found wide age-related differences and slight differences according to educational level and gender. As Table 2.11 shows, respondents aged 40 or above are on the whole substantially more likely than those under 40 to think that such claims should be possible, for married, cohabiting and female (but not male) same sex couples. In the younger age group, only a minority think that such a partner should have a continuing claim for support from the other partner, irrespective of the status of the partnership. However, for older respondents, there is a small majority who favour married partners being able to make such a claim, with declining levels of support for cohabitees and same sex partners being able to do so. No significant differences appeared in relation to social class.

2.18 In relation to attitudes towards a relationship that ends by the death of a partner, those with some educational qualifications are more likely than those with none to favour parity of treatment between married couples, cohabitees and same sex partners in relation to staying in the shared home, being exempt from inheritance tax and eligibility for a deceased partner's occupational pension, as shown in Table 2.13. Similarly, women are more likely than men to support parity of treatment across different types of adult partnerships, also shown in Table 2.13. No significant differences appeared in relation to social class and, as Table 2.12 shows, in relation to marital status and housing tenure.