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1. Discussion Paper No 86, (May 1990) referred to in this part of the report as "the discussion paper".
2. By "cohabitation" in this context we mean the relationship of a man and a woman who are not legally married to each other but are living together as husband and wife, whether or not they pretend to others that they are married to each other.
3. See "Cohabitation in Great Britain--characteristics and estimated numbers of cohabiting partners". Population Trends (OPCS) Winter 1989. 4. See paras 1.3 and 1.4 above.
5. Opting out is discussed more fully at para 16.47 below. We say it should be possible "in general" because we do not think that it should be possible to opt out of protection against domestic violence.
6. See Sch 1 para (aa) (added by the Administration of Justice Act 1982, s14(4)). 7. S18.
8. See eg the Social Security Act 1986, s20(11); the Rent (Scotland) Act 1984, 0 and Sch 1; the Housing (Scotland) Act 1988, s31(4); the Mental Health (Scotland) Act 1984, s53(5) (definition of "nearest relative").. Cohabitation has also been recognised in the criminal law on provocation. See McDermott v H M Adv 1973 JC 8; McKay v H M Adv 1991 SCCR 364.
9. Family Law (Scotland) Act 1985, sl.
10. Child Support Act 1991, s11 and Sch 1.
11. Family Law (Scotland) Act 1985, s25(1).
12. S25(2).
13. S25(3).
14. Para 3.6.
15. 68% of respondents thought that, where a couple had been cohabiting for five years, household furniture and equipment should belong to them in equal shares.
16. Married Women's Property Act 1964, sl.
17. 1950 SC 253.
18. Para 4.2.
19. Family Law (Scotland) Act 1985, s9.
20. 1985 Act, s10(4). There is special provision for property acquired before the marriage for use by the parties as their family home or as furniture or plenishings for it.
21. 1985 Act, s10(1).
22. Discussion Paper, para 5. 11.
23. See paras 16.16 to 16.23 below.
24. Para 5.16. The principle would have corresponded to section 9(1)(c) of the Family Law (Scotland) Act 1985 which is that "any economic burden of caring, after divorce, for a child of the marriage under the age of 16 years should be shared fairly between the parties". This is in addition to aliment for the child.
25. Child Support Act 1991, s11 and Sch 1.
26. Para 5.15.
27. A claim by a cohabitant based on recompense was, however, successful in Scanlon v Scanlon 1990 GWD 12-598.
28. There is no claim for recompense based on unjustified enrichment if the enrichment arose from a donation. See eg Wilson v Paterson (1826) 4 S 817; Drummond v Swayne (1834) 12 S 342; Turnbull v Brien 1908 $C 313 at p315.
29. See eg Rankin v Wither (1886) 13 R 903.
30. The courts in England (see eg Cooke v Head [197211 WLR 518, applying dicta in Gissing v Gissing [19711 AC 886), Canada (see eg Pettkus v Becker (1980) 117 DLR (3d) 257), Australia (see eg Baumgartner v Baumgartner (1987) 76 ALR 75) and New Zealand (see eg Oliver v Bradley [198711 NZLR 586) have used the idea of the constructive trust to provide a remedy for cohabitants in certain situations.
31. This has been the experience in a number of Commonwealth jurisdictions. See paras 5.2 to 5.4 of the discussion paper and Gillies v Keogh [19891 2 NZLR 327. See also the Queensland Law Reform Commission's discussion paper on Shared Property: Resolving property disputes between people who live together and share property (Discussion paper No 36, Oct 1991) ppl-4.
32. 1985 Act, s9(2).
33. See eg Kokosinski v Kokosinski [19801 Fam 72 (where a cohabitation which lasted for 24 years was followed by a marriage and then by a separation a few months later).
34. We recognised this anomaly in our report on Aliment and Financial Provision, Scot Law Com No 67, (1981) para 3.98 but concluded that the remedy for it might be to deal with the legal effects of cohabitation, something with which we were not concerned in that report.
35. We consider the legality of such arrangements in para 16.46 below.
36. This is the period most commonly allowed in recent Canadian statutes on claims by cohabitants after the end of the cohabitation. See the Alberta Institute of Law Research and Reform Towards Reform of the Law Relating to Cohabitation Outside Marriage (1987) pp59-60.
37. The expression used for the fixed share of spouse or issue, even against the terms of the deceased's will, in our report on Succession (Scot Law Com No 124, 1990).
38 . Paras 6.29 and 6.30.
39. Manners and Rauta, Family Property in Scotland (OPCS, 1981) p21 and table 4.8.
40. Scot Law Corn No 124 (1990), paras 3.3 to 3.14.
41. Ibid para 3.14.
42. Intestate Succession and Legal Rights (Consultative Memorandum No 69, 1986) para 4.86.
43. See our report on Succession (Scot Law Corn No 124, 1990) para 3.6.
44. See the consultative memorandum and report referred to in the last two footnotes.
45. It is particularly interesting, in this connection, to note the extension of the provisions for cohabitants recommended by the English Law Commission in its report on Distribution on Intestacy (Law Com No 187) 1989. Under the existing law a surviving cohabitant must show that he or she was dependent on the deceased. The Commission has recommended (para 59) that this should no longer be required. It has also recommended (para 60) that the factors to be taken into account in assessing a cohabitant's claim should be the same as in the case of a spouse.
46. Inheritance (Provisions for Family and Dependants) Act 1975, s2(1).
47. We reached the same conclusion in relation to legal shares in our report on Succession (Scot Law Com No 124, 1990) paras 3.49 to 3.54.
48. S8(5) (appointment of arbiter re prior rights).
49. Clause 12 (validation of certain documents); clause 13 (rectification of wills). See Scot Law Com No 124 (1990) p156.
50. Sch 1, para 1(aa).
51. See the Social Security Benefit (Persons Residing Together) Regulations (SI 1977 No 956) where a similar test is used in relation to spouses.
52. The ground recommended by the Law Commission for England and Wales is very similar to this but includes after "receive" the words "for his maintenance". See Law Com No 187, Distribution on Intestacy (1989) para 60. We do not think that the ground should be so closely tied to maintenance. There may be cases where the applicant has no need of any provision for his or her maintenance (having, for example, a good salary or a good pension) but where he or she has a good claim based on contributions or on the absence of any other person who was close to the deceased.
53. This would include any claim to inheritance tax.
54. There is a similar protection in the English legislation. Inheritance (Provision for Family and Dependants) Act 1975, s20.
55. "Net estate" is used here in the same sense as in our report on Succession (Scot Law Com No 124, 1990). It means the whole estate belonging to the deceased at the date of his death less debts and funeral expenses.
56. This is the same solution as we have recommended for legal shares in our report on Succession (Scot Law Com No 124, 1990) para 9.21. It produces the same effect as s146(1) of the Inheritance Tax Act 1984 which deals with claims under the (English) Inheritance (Provision for Family and Dependants) Act 1975.
57. 1981 Act, s18(1) as amended.
58. Para 7.8.
59. Discussion Paper No 85 (1990) paras 6.13 to 6.29.
60. Matrimonial Homes (Family Protection) (Scotland) Act 1981, s18(3).
61. Para 7. 10.
62. Life Assurance Act 1774, sl. This provides that no insurance shall be made ... on the life ... of any person ... wherein the person or persons for whose use benefit, or on whose account such policy or policies shall be made, shall have no interest, or by way of gaming or wagering; and every assurance made contrary to the true intent and meaning hereof shall be null and void . . .".
63. MacGillivray & Parkington on Insurance Law (8th edn, 1988) paras 67 and 68. The insurable interest of a person in the life of his or her spouse was not doubted in Champion v Duncan (1867) 6 M 17; Wight v Brown (1849) 11 D 459. See also Griffiths v Fleming [190911 KB 805 at pp820-823.
64. See Griffiths v Flemitig, above, at pp821-822.
65. The amendments were made by the Married Women's Policies of Assurance (Scotland) (Amendment) Act 1980 which implemented this Commission's Report on The Married Women's Policies of Assurance (Scotland) Act 1880 (Scot Law Com No 52, 1978). Before the amendments s2 applied only, to a policy effected by a "married man".
66. The section also applies to policies for a person's children, including children whose parents are not married to each other. See s2. So it can already be used by either cohabitant to take out a policy for his or her children.
67. S2.
68. Thus giving him or her a jus quaesitum tertio. See Carmichael v Carmichael's Exrx 1920 SC (HL) 195.
69. See Jarvie's Tr v Jarvie's Trs(1887) 14 R 411; Carmichael v Carmichael's E= 1920 SC (HL) 195.
70. S2 provides that "if it shall be proved that the policy was effected and premiums thereon paid with intent to defraud creditors, or if the person upon whose life the policy is effected shall be made bankrupt within two years from the date of such policy, it shall be competent to the creditors to claim repayment of the premiums so paid from the trustee of the policy out of the proceeds thereof.". This provision is expressly preserved by s34 of the Bankruptcy (Scotland) Act 1985 (gratuitous alienations).
71. The repealing provision is in Sch 2 of the draft Bill. For the full capacity and property rights of married women, see now the Family Law (Scotland) Act 1985, s24. See also clause 24 of the Draft Bill.
72. This question has been the subject of fairly extensive discussion in England. See eg Barton, Cohabitation Contracts (1985) pp37-49; Parry, The Law Relating to Cohabitation (2d ed 1988) paras 9.06 to 9. 10; Poulter, "Cohabitation Contracts and Public Policy" (1974) 124 New Law Journal pp999 and 1034; Bottomley, Gieve, Moon & Weir, The Cohabitation Handbook (1981) ppl.90-192.
73. (2nd edn, 1929) p562 (footnotes omitted). See also Walker, Contracts (2d edn 1985) para 11.34.
74 . Matrimonial Homes (Family Protection) (Scotland) Act 1981, s18.
75. Housing (Scotland) Act 1988, s31(4).
76. Damages (Scotland) Act 1976, ssi and 10(2) and Sch 1, para (aa) (added by the Administration of Justice Act 1982, s14(4)).
77. A number of courts in the United States of America have rejected the view that cohabitation contracts are unenforceable. See Weitzman, The Marriage Contract (1981) pp392-401. The best known American case is Marvin v Marvin 18 Cal 3d 660 (1976). Some of our consultees, including the Faculty of Advocates, considered that a court would not now strike down a typical cohabitation contract as immoral.
78. R (88) 3.
79. Para 9. 1.
80. See draft Bill,, clause 34.
81. See draft Bill, clause 35.
82. Including a claim for financial provision on divorce and a claim for legal rights on death.
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