As if …

Blog written by Nicole Kelly, LLB (Hons)                 

The law surrounding cohabitation with regards to family law has developed significantly to allow rights to those who choose not to marry. The Family Law (Scotland) Act 2006 provided cohabitating couples with rights and responsibilities upon separation in relation to children, property and assetssimilar to those granted to married couples or those in a civil partnership. Whilst this was a step forward in recognizing cohabitating couples who chose not to marry, the concepts and definitions surrounding it are very outdated and do not reflect modern times.

The Act recognizes cohabitating couples as having rights if they were living together ‘as if they were husband and wife’, or ‘as if they were civil partners’. The law does not recognize a couple cohabitating as being sufficient to be deemed worthy of rights and responsibilities, this is only the case if they meet the test of living together as if a traditional husband and wife or as civil partners. How is such a test to be determined? Who decides what constitutes a marriage or civil partnership? There is no guidance provided in statute as to what deems a non-married, cohabitating couple to be all but married or in a civil partnership. More importantly, why does there have to be a test? Why can a cohabitating couple not simply be treated as a cohabitating couple entitled to the same rights as a more traditional, legally recognized relationship?

The law is very outdated in this sense, especially in a time where the number of marriages or civil partnerships annually is continually decreasing as millennials see less and less requirement to register their love in a formal sense or opt for more non-traditional type of relationship. Data published by the ONS in August 2021 showed that opposite sex marriages in 2018 were at their lowest on record, with marriages in general at their lowest since 2009. This reflects the societal change in opinion towards marriage. Whilst many still believe in marriage and will still choose to go on to marry when the time comes, many do not see the point or necessity when already living together. The only thing which a marriage would change for them, would be their position legally. There would not be as much degree of scrutiny as to whether or not they were a ‘real couple’, like that of a husband and wife, when it came to deciding, upon separation, whether or not the parties should be afforded the same rights and responsibilities as they would automatically had they been married.

The law surrounding cohabitating couples and couples in general requires amendment. They should not have to prove themselves worthy to be considered comparable to a ‘real couple’ just because they chose not to solidify their relationship legally with a piece of paper. Their relationship should be recognized by law, without comparison, as one which provides them with rights and responsibilities.