This briefing covers intimate adult relationships of a type which have legally recognised consequences. These relationships are marriages, civil partnerships and cohabiting relationships. The briefing discusses the law which applies when these relationships end.
Couples in Scotland, whether same-sex or mixed-sex, can choose to marry, enter a civil partnership or live together. Different areas of the law cover what happens when these relationships end.
On a point of terminology, and as is well known, divorce is the formal procedure that ends a marriage. The equivalent procedure for ending a civil partnership is known as dissolution.
The need for court action to obtain a divorce or dissolution
In Scotland, obtaining a divorce or dissolution itself always requires court action, with one person raising court proceedings against the other. This requirement applies even if a couple are in complete agreement on other issues relating to the divorce or dissolution, such as what should happen to their property and finances.
Most divorces or dissolutions and court-based disputes between cohabiting couples are considered by the local sheriff court.
For some couples, where certain conditions are satisfied, a simplified divorce or dissolution court procedure may be used in the sheriff court.
The grounds for divorce or dissolution
Scotland, unlike England and Wales, has a 'mixed system' of divorce or dissolution. This means that some of the grounds for the divorce or dissolution focus on one person's behaviour. However, other grounds are based on the couple having been separated for a period of time. In practice, most divorces or dissolutions in Scotland now rely on the separation-based grounds.
The role for private negotiations
While court action is necessary to obtain a divorce or dissolution itself, in all types of legally recognised relationships, what happens to the couple's property and finances, or to their children, can be resolved between the couple themselves in private negotiations, if the couple so choose.
The couple may be supported by solicitors and other dispute resolution specialists such as family mediators. The couple may reach a legally binding agreement as part of the process.
However, a court may still become involved in an individual case to resolve a dispute about the couple's property, finances and children which cannot be resolved by other means.
The focus of this briefing is on the couple's property and finances. For more detail on issues relating to children, see the separate SPICe Briefing entitled Parental Responsibilities and Rights.1
The Family Law (Scotland) Act 1985 - the statutory regime for spouses and civil partners
For spouses and civil partners, there is a comprehensive statutory regime relating to a couple's property and finances provided by the Family Law (Scotland) Act 1985, as amended.
Section 9 of the 1985 Act sets out the principles that the courts must apply when deciding whether to make a relevant court order. A key principle is fair sharing, which usually means equal sharing, unless special circumstances apply.
The family home, even if only owned by one spouse or civil partner, and a person's pension entitlement built up during the marriage or civil partnership, are important examples of the types of property covered by this regime.
The regime for cohabiting couples
For cohabiting couples, the main piece of legislation which applies is the Family Law (Scotland) Act 2006 ('the 2006 Act'). Section 28 of the 2006 Act permits a financial claim by a cohabitant from the other cohabitant in some circumstances. A strict time limit applies here - the court application must be made one year from the date in which the couple ceased to cohabit. There is no discretion to extend the time limit in any circumstances.
Note that the statutory regime for cohabitants is much more limited in scope compared to the one for spouses and civil partners.
SPICe can only provide general information relating to the law of Scotland. If a person wishes to receive legal advice in relation to the circumstances of their individual case they should contact a solicitor. On how to find a solicitor, see the final section of this briefing.
To have their relationship recognised as having legal consequences, all couples in Scotland, whether mixed-sex or same-sex, have three options, namely to:
marry
enter into a civil partnership
live together.
This briefing discusses the law which applies in Scotland when these relationships end.
There are two main legal topics covered in this briefing:
for divorce and dissolution, the grounds on which they can be obtained
for all types of legally recognised relationships, how the couple's property and finances are treated at the end of that relationship.
The law in Scotland in these areas differs from the law in the rest of the UK.
When a couple's relationship breaks down, as well as considering their property and finances, the couple may need to decide what arrangements will be made for the future care of any children of that relationship. As noted earlier, the law on this topic is described in a separate SPICe Briefing, Parental Responsibilities and Rights.1
The legal rights and obligations affecting cohabiting couples are currently much more limited than those applying to married couples or those in a civil partnership.
Accordingly, the approach in this briefing is to describe the law on divorce and dissolution of a civil partnership together in the first main section of the briefing, with a second, separate section on the end of a cohabiting relationship following it.
Some general topics, applying to all types of legally recognised adult relationships, are also covered at the end of the briefing.
This first section of the briefing describes the law on divorce and on dissolution. It covers the following topics:
There are three main pieces of legislation applying to divorce and dissolution in Scotland. They are all Acts of the UK Parliament, which have been subsequently amended, including by Acts of the Scottish Parliament.
The legislation is as follows:
the Divorce (Scotland) Act 1976, with section 1 setting out the grounds for divorce
the Civil Partnership Act 2004, with section 117 specifying the grounds of dissolution
the Family Law (Scotland) Act 1985, with a substantial part of the Act covering how the property and finances of a couple are dealt with on divorce or dissolution.
As well as family law, contract law also applies to pre-nuptial agreements, that is agreements reached prior to a marriage or civil partnership, and separation agreements, that is, agreements reached once the relationship has ended.
Case law, the branch of law developed by judicial decisions in individual cases, plays an important role in both family law and contract law.
As noted earlier, in Scotland, court proceedings are always required to obtain the divorce or dissolution itself.
However, certain issues associated with the divorce or dissolution can be legally agreed upon outside the court process:
the arrangements for the future care of any children, covered by the separate SPICe Briefing.1
In practice, the outcome for a couple depends on whether they are willing to attempt an out of court process, and are able to reach an agreement satisfactory to both of them when they try.
Crucially, relationships with a significant power imbalance, such as those affected by domestic abuse, are unsuitable for negotiations outside the court process. Anyone signposting people to legal or other specialist services should always keep this important issue in mind.
For those couples considering an approach outside the court process, the following sections of the briefing are likely to be particularly helpful:
This section of the briefing considers the role of the court in more detail.
A key point is that, in an action for divorce or dissolution, one spouse or civil partner (the pursuer) must always start court proceedings against the other spouse or civil partner (the defender).
Court proceedings begun together in joint names are not possible. Again, this applies even if the couple are in agreement in all issues relating to their divorce or dissolution.
A court action for divorce or dissolution may be undefended for the other person. In other words, the defender does not lodge an objection with the court to the ground of the divorce or dissolution being relied upon, or any related court orders sought, such as those associated with the couple's property or finances or the future care of the children.
When a divorce or dissolution is undefended then the court will often be playing a straightforward and administrative role in the divorce or dissolution process.1
Divorce and dissolution cases made up 75% of family cases in 2022-23, the latest year for which statistics are available.2
Almost all court actions for divorce or dissolution, and indeed court actions to resolve disputes between cohabiting couples, are dealt with by the local sheriff courts. Here the judges are known as sheriffs and summary sheriffs.
The sheriff courts deal with a wide variety of criminal and civil matters. Individual sheriffs and summary sheriffs do not specialise in family law, except in large urban areas.
A small number of family cases each year (less than 1%) are dealt with by the Court of Session in Edinburgh.2 Complex cases, including those involving divorce, with an international element, and/or 'high value' cases in terms of the extent of a couple's property and finances, may be more likely to be heard by the Court of Session.
There are two main types of court procedure which can be used to obtain a divorce or dissolution:
the ordinary procedure, for which legal advice is recommended
the simplified procedure, which is designed to be used without legal advice, although some people still wish to take legal advice in the context of using it.
The choice of court procedure, in circumstances where a choice is available, is one relevant consideration when deciding how to proceed with a divorce or dissolution.
The simplified procedure can only be used for certain grounds of divorce or dissolution, specifically, those based on the couple having been separated for a period of time. The grounds for divorce or dissolution are considered in more detail in the next section of the briefing.
The simplified procedure can only be used when various other conditions are satisfied. For example, it cannot be used where there are children under sixteen and where there are issues associated with the divorce relating to the couple’s property and finances that are still to be resolved by the courts.
In the year 2022-23, 60% of divorces used the simplified procedure and, for dissolutions, the equivalent figure was 80%.1
For more information on the simplified divorce or dissolution procedure, see the guidance on the website of the Scottish Courts and Tribunals Service.
Note that, in November 2024, the Scottish Civil Justice Council published a consultation proposing changes to the court rules to allow an extension to the scope of the simplified procedure.2
A spouse or civil partner must successfully rely on a ground for divorce or dissolution to obtain a divorce or dissolution.
Strictly speaking, in Scotland it is possible to divorce or dissolve a civil partnership on only two grounds:
The first ground is that a marriage or civil partnership has broken down irretrievably.i
The second ground is that an interim gender recognition certificate has been issued after the date of the marriage or civil partnership.ii
However, as explored in more detail in a later section of the briefing, irretrievable breakdown can be proved in a number of ways. In practice, it is these different ways which are commonly referred to as the grounds for divorce or dissolution.
Scotland has a 'mixed system' of divorce or dissolution. Some grounds for divorce or dissolution focus on one person's behaviour, which are sometimes called fault-based grounds. However, other grounds are based on the couple having been separated for a period of time (the no-fault grounds).
In contrast, England and Wales now has an entirely 'no-fault' system of divorce.
The briefing now considers interim gender recognition certificates and irretrievable breakdown in more detail.
The Gender Recognition Act 2004 allows an individual aged 18 or over to apply to a Gender Recognition Panel for a gender recognition certificate.i Successful applicants, who are granted a full gender recognition certificate, are, from the date of issue, considered in law to be of their acquired gender.
If the individual applying for the certificate is married or in a civil partnership, and wants to stay married or in a civil partnership after obtaining the gender recognition certificate, then their spouse or civil partner will need to sign a document known as a statutory declaration saying that they agree to that.ii
A person can still apply for a gender recognition certificate even if their spouse or partner refuses to sign the document or the applicant does want to end the marriage or civil partnership. In these circumstances, if the application is successful, the applicant will receive an interim gender recognition certificate.iii
Before a certificate is issued, several criteria must be satisfied, which are in outline:
the applicant must be living in the new gender, intends to do so for the remainder of their life, and must have done so already for the last two years
the applicant has or has had gender dysphoria, and can provide medical reports on this.iv
Advice on how to obtain a gender recognition certificate can be found on the UK Government website.
Where the applicant for the interim gender recognition certificate is married or in a civil partnership, they, or indeed their spouse or civil partner, can apply for divorce or dissolution based on the fact that an interim gender recognition certificate has been issued.v
This ground of divorce or dissolution does not apply where the Gender Recognition Panel goes on to issue a full gender recognition certificate after issuing an interim one.  In those circumstances, the spouse or civil partner will have consented to stay in the marriage or civil partnership after the interim certificate was issued.viÂ
This ground of divorce or dissolution does remain available if 1) the sheriff court issues a full gender recognition certificate where the applicant has had an interim certificate issued by the Panel; and 2) the applicant’s spouse or civil partner has not given a statutory declaration of consent to the marriage or civil partnership continuing.vii
Irretrievable breakdown of a marriage can be proved in four different ways:
since the date of the marriage the defender has committed adulteryi
since the date of the marriage the defender has behaved in such a way that the pursuer cannot reasonably be expected to continue to cohabit with the defender ii
the couple have not cohabited for one year and both people consent to the divorceiii
the couple have not cohabited for two years.iv
95% of divorces in 2022-23 were based on a separation ground: 22% on ground 3, 73% on ground 4.1
Establishing irretrievable breakdown of a civil partnership is a similar but not identical process. Here irretrievable breakdown can be proved in three different ways:
since the date of registration of the civil partnership the defender has behaved in such a way that the pursuer cannot reasonably be expected to continue to cohabit with the defenderv
the couple have not cohabited for one year and both people consent to the dissolutionvi
the couple have not cohabited for two years.vii
98% of dissolutions in 2022-23 were based on a separation ground: 26% on ground 2 and 72% on ground 3.2
Adultery and marriage
The definition of adultery is that a married person has had voluntary heterosexual intercourse with someone who is not their spouse.
The above definition applies even when the marriage in question is a same-sex marriage.viiiAccordingly, if a spouse in either a same-sex or mixed-sex marriage has a voluntary extra-marital sexual relationship with a person of the same sex to them this is not adultery. However, it will be relevant under the ground that considers the defender's behaviour.3
Adultery and civil partnerships
Adultery is not a ground for dissolution of a same-sex or mixed-sex civil partnership.
When the legislation was proposed to enable mixed-sex couples to enter a civil partnership the Scottish Government made a policy decision not to add adultery to the grounds for dissolution. For example, in its 2018 consultation on the future of civil partnerships, the Government commented as follows:
Adultery has remained part of divorce law due to a number of religious bodies and people of faith being of the view that it should be a reason for ending a marriage. It does not seem to the Scottish Government that these arguments apply in relation to ending a civil partnership.
Scottish Government. (2018, September 28). Future of civil partnership: consultation, chapter 4, para 4.29. Retrieved from https://www.gov.scot/publications/future-civil-partnership-scotland/pages/6/
As noted earlier, it is the Family Law (Scotland) Act 1985, as amended (‘the 1985 Act’), which sets out the principles to be applied when dividing up the couple's property and/or making financial arrangements on divorce or dissolution.i The collective term for this exercise relating to property and finances is financial provision on divorce or dissolution.
The policy emphasis in the 1985 Act is on a ‘clean break’, with the aim of return to financial independence for both people as soon as possible. However, as explored in more detail later, the 1985 Act does allow the courts to modify this approach in individual cases. Broadly, this is where the divorce or dissolution will cause one spouse or civil partner financial difficulty.
This section of the briefing considers the following aspects of the law and practice:
This section of the briefing considers two different types of legally binding agreement:
separation agreements, that is those which can be made after a relationship has broken down
pre-nuptial agreements, that is those made before the marriage or civil partnership about what should happen if the relationship breaks down.
As a preliminary point, one possibility is that the court ends up fully considering the division of the couple’s property and finances and reaching a decision on areas in dispute by applying the principles set out in the 1985 Act. This topic is considered in more detail later.
However, as already alluded to, when their relationship ends, many couples privately reach a legally binding separation agreement about the terms of their divorce or dissolution. This section of the briefing introduces two key terms in this context:
A minute of agreement is the name given to a legally enforceable document that records the terms of any agreement reached outside the court process. It can be, and usually will be, registered in the Register of Deeds, one branch of a register known as the Books of Council and Session.
A joint minute of agreement is a similar document but which has been approved by the court as part of a court process. A typical pattern would be that one spouse or civil partner initially commences court proceedings, but the couple are later able to agree the terms of an agreement, which the court then approves.
Note that, where couples are seeking to reach agreement themselves, and both parties have access to legal advice, their respective solicitors will negotiate on behalf of the couple with reference to the same principles set out in the 1985 Act as the courts use.
Whilst prenuptial agreements have not been the subject of extensive case law, in Scotland, as a general concept, they are regarded as being legally enforceable and not contrary to public policy.
In practice, prenuptial agreements are commonly used to ring-fence certain assets, in order to exclude them from the statutory definition of matrimonial or partnership property.12This is significant because, as explored in more detail later, there is a key legislative principle that such property requires to be fairly shared on divorce or dissolution.
However, as explored in more detail later, prenuptial agreements can also be set aside by the court under the 1985 Act on the basis that they were not fair and reasonable at the time they were entered into.i
In addition, under the general rules of contract law, there are other restrictions on a couple's freedom to contract. For example, a contract can be struck down on grounds including:
error, where the couple misunderstood some material aspect of the contract or the circumstances surrounding it
fraud, that is, deception for gain, and extortion, threats of something to obtain someone's consent
facility and circumvention, where a vulnerable person has been taken advantage of for someone else's gain
undue influence, where there has been an abuse of a position of trust.
While the concept of a prenuptial agreement itself is accepted in public policy terms in Scotland, the specific provisions of the agreement itself also must not be contrary to public policy.3
Reported cases on legal challenges to relationship agreements in Scotland have focused on property and finances so any discussion outside that area must be speculative. However, a leading textbook has suggested that a contract with a clause preventing either person from seeking a divorce or dissolution might be one example of a provision contrary to public policy, for placing undue restrictions on personal freedom.3
The court has power to set aside all or part of a separation agreement or prenuptial agreement1 on the basis that it, or any term of it, was not fair and reasonable at the time it was entered into.i
Subsequent case law has developed this test with reference to a number of individual principles. One leading case set out the following principles:2
The agreement has to be examined from the point of view of both fairness and reasonableness.
All the relevant circumstances leading up to and prevailing at the time of the signing of the agreement need to be considered, including the nature and quality of the legal advice given to either party.
Evidence that some advantage had been taken by one party of the other by reason of the circumstances existing at the time of the negotiations might be very significant.
The court should not be unduly ready to overturn agreements that were validly entered into.
An agreement which has led to an unequal, and possibly very unequal, division of assets, does not in itself necessarily give rise to any inference of unfairness or unreasonableness.
In practice, the circumstances in which an order has been made setting aside all or part of an agreement include, for example, in relation to marriage:3
failure to disclose material information relating to matrimonial property4
absence of knowledge on the part of both the spouses that pension interests could constitute matrimonial property5
coercion and failure to disclose assets and liabilities.6
Note that most of the existing case law here relates to marriage (as the older institution) but it is potentially relevant in the context of civil partnerships as well, depending on the circumstances of an individual case.
This part of the briefing focuses on cases which come before court under the 1985 Act and the approach which the 1985 Act sets out for such cases.
As noted earlier, the approach in the 1985 Act also usually underpins a key part of private negotiations between a couple, where that couple has access to legal advice.
This section of the briefing considers the concept of matrimonial property, as it is referred to in the context of a marriage, or partnership property, as it is referred to in the context of a civil partnership.
While the labels attached to the property are different between marriage and civil partnerships, the underlying legal concept is the same in both instances.i
The process of division of a couple's assets (envisaged by the 1985 Act) only applies to matrimonial or partnership property.
Matrimonial or partnership property is all property belonging to the two parties, or to either of them, before the relevant date.i
The relevant date is the earlier of:
the date the couple ceased to cohabit as spouses or civil partners
the date that one spouse or civil partner was served notice of the court proceedings for divorce or dissolution.iii
Generally speaking, matrimonial or partnership property must be acquired during the marriage or civil partnership.iv However, there is an exception to this relating to the family home and its contents. This can still be matrimonial or partnership property if acquired before the marriage or civil partnership, but with the intention that it be used as a family home.v
For couples that own their own home, the family home is often the largest asset falling into the category of matrimonial or partnership property.
The benefits of a pension accrued during a marriage or civil partnership are matrimonial or partnership property.vi In practice, a pension can also be a very significant asset for some couples.
There is a specific exception in the 1985 Act where the property is acquired by one person by gift or inheritance from a third party. Providing this property stays in the same form, or substantially the same form, the property falls outside the scope of matrimonial or partnership property.i12
On the other hand, where the funds from an inheritance or gift are used to buy a different form of property during a marriage or civil partnership, the property acquired is matrimonial or partnership property. So, for example, if someone uses funds from an inheritance to buy a house, this then becomes matrimonial or partnership property.3
Pets and other animals
The law in Scotland gives animals a degree of protection from harm, but, in the context of financial provision on divorce or dissolution, it also classifies them as property.
Accordingly, whether the animal in question is, for example, livestock on a farm, or a household pet, the 1985 Act can apply to them. Specifically, if acquired - other than as a gift or inheritance from a third party - during the marriage or civil partnership by either spouse or civil partner, or by both of them jointly, the animal will be treated as matrimonial or partnership property. The normal legislative principles, including the fair sharing of matrimonial or partnership property, will apply to them.4
The court must consider a statutory two-stage test set out in the 1985 Act before deciding whether to make a court order:i
First, a court order must be justified by the principles set out in the 1985 Act and explained in the next part of the briefing.
Second, the order must be reasonable having regard to the resources of the couple.
Both parts of the test must be satisfied in an individual case.
The need for a court to take account of the couple's resources ensures that a spouse or civil partner is not left with the financial liability of a court order which is justified by the legislative principles but with which they cannot afford to comply.1
This section of the briefing considers the five legislative principles which are considered by the court under the 1985 Act.
As a preliminary point, note that the details of the legislative principles have been further developed by the decisions of judges in individual cases, that is case law.
Also, as a reminder from earlier in the briefing, the overall policy emphasis in the 1985 Act is on a ‘clean break’, with the aim of return to financial independence for both people as soon as possible. However, the courts are permitted under the 1985 Act to modify this approach in some circumstances.
The starting point for any case relating to financial provision on divorce or dissolution is the first legislative principle, fair sharing of matrimonial or partnership property, discussed later.
Once this principle has been considered, the remaining four principles must be considered to see if any of them justify a further financial award to one spouse or civil partner.
As explored in more detail later in the briefing, the conduct of the spouses or civil partners during the marriage or civil partnership is only relevant in very limited circumstances.
As a general rule, the court is not to consider the conduct of either spouse or civil partner unless:
the conduct has adversely affected the financial resources which are relevant to the decisioni1
in relation to Principle 4 (a period of adjustment) and Principle 5 (avoiding serious financial hardship) it would be manifestly inequitable to leave the conduct out of account.ii
In relation to the first bullet point above, a specific expression of this general rule can be found in the 1985 Act in relation to Principle 1 (fair sharing of matrimonial or partnership property).
As discussed earlier, special circumstances justifying an unequal split of matrimonial or partnership property can include the situation where one spouse or civil partner has destroyed property, squandered or wasted it, or sold or otherwise transferred it to a third party.iii
The court can make various court orders to give legal effect to a decision under the 1985 Act in an individual case.i This section of the briefing describes those orders.
One type of order which can be made under the 1985 Act is a property transfer order. As its name suggests, it requires one spouse or civil partner to transfer property, or their share of property, such as the family home, to the other spouse or civil partner.i
Another type of order is an order for the payment of a capital sum from one spouse or civil partner to the other.ii As the family home is often a couples' main financial asset, this may result in the home having to be sold to comply with such a court order.
Both types of order (for property transfer and the payment of a capital sum) can be deferred so they only take effect at a future date.iii
For example, it may be that, under the terms of the divorce or dissolution, the children of any marriage or civil partnership are to live with one spouse or civil partner in the family home.
Here the court can decide that the sale of that family home, where the proceeds of sale are to be used to fund payment of a capital sum, could be deferred until the children have reached the age of 18.
An order for payment of a capital sum can also be paid in instalments, if the court decides this is appropriate.iv This can be used, for example, when one of the main assets is something which it would be difficult to sell without destroying its value, such as an ongoing business.
In respect of Principle 3 (fair sharing of the economic burden of childcare), Principle 4 (period of adjustment) and Principle 5 (avoiding serious financial hardship) it is also possible for the court to make an order for the payment of what is known as a periodical allowance.i This is a regular payment from one spouse or civil partner to the other (not associated with an order for the payment of a capital sum).
Because of the overall policy emphasis of the legislation on a 'clean break', the 1985 Act makes it clear that this should not be the order of first choice for the courts. It says it should be only made where other available types of order, such as those requiring transfer of property or payment of a capital sum, would be inappropriate or insufficient to satisfy what is required.ii
As discussed earlier in the briefing, pension benefits built up during the period of the marriage or civil partnership, but before the relevant date, are matrimonial or partnership property.i
As with any other type of asset forming part of the matrimonial or partnership property, the up-to-date value of a pension belonging to either spouse or civil partner should be established. This is to ensure a division of all the couple's assets according to the legislative principles set out under the 1985 Act. As noted earlier in the briefing, these principles include fair sharing.
Valuation of a pension often occurs through a formal pension valuation process. On the valuation of public sector pensions, for example, see the information provided by the Scottish Public Pensions Agency.
Pension benefits can be significant assets for some couples. However, one difficulty with pensions is that they are not capable of being realised immediately or at least that is often not the best financial approach.1
One approach to pensions as a form of matrimonial or partnership property and the fair sharing of them is to undertake what is known as off-setting. Here one spouse or civil partner receives another asset to offset the value of the other spouse or partner's pension. For example, that spouse or partner might receive all of, or at least a larger share of, the family home.
However, separately, there are also a number of specific orders in the 1985 Act, as amended, relating to pensions, which are considered in this part of the briefing.
The court can also make a range of incidental orders, which are other orders which help give effect to the principles of the 1985 Act in practice.i
The court can make an order:
for the sale of property, including a sale postponed to a future date
for the valuation of property
determining any dispute between the spouses or civil partners as to their respective property rights
an order regulating the occupation of the family home, or use of the furniture and contents therein, or excluding either spouse or civil partner from such occupation.
This part of the briefing considers the law which applies at the end of a cohabiting relationship in relation to the couple's property and finances.
As with the equivalent area of law applying to divorce or dissolution, financial awards to a cohabitant are often referred to as financial provision.
This part of the briefing covers the following topics:
the Family Law (Scotland) Act 2006, the main piece of legislation covering this area
how land and buildings owned by cohabitants are treated in law, including the couple's home
the specific role of an area of law known as unjustified enrichment.
Note that, in 2022, the Scottish Law Commission, the independent statutory body which makes recommendations for law reform to the Scottish Ministers, published a report relating to the law on cohabitation. It makes recommendations for the reform of the law which applies to financial provision.
The Scottish Government's responded to this report in February 2023. In December 2023, it confirmed it would be consulting in this area.
Accordingly, it is possible that there may be legislative reform in this area at some future date. This section of the briefing states the current law.
There are three main sources of law for cohabiting couples on relationship breakdown:
the Family Law (Scotland) Act 2006, an Act of the Scottish Parliament, which contains important provisions for cohabitants at the end of their cohabiting relationship
contract law, under which a couple can make a cohabitation agreement at the start of, or during, their relationship, as well as a separation agreement, once the relationship has broken down
the general principles of property law - this area is relevant for any land or buildings owned by the couple, or either of them, including their home
the law of unjustified enrichment, which operates in practice to provide an important legal remedy for some cohabiting couples.
This section of the briefing explores each of these areas of law in more detail.
Prior to living together, or at an early stage in their cohabiting relationship, a couple might reach an agreement about how all or some of their property and finances should be treated on separation.
Broadly, these arrangements, sometimes called cohabitation contracts or cohabitation agreements, are the equivalent of prenuptial agreements for spouses and civil partners.
Likewise, at the end of their relationship, a separating couple might make a separation agreement and register it as a Minute of Agreement in the Books of Council and Session, as described earlier for spouses and civil partners.
A key point to note is that, for the legal agreements described above, there is no legislative equivalent to the provision in the 1985 Act applying to spouses and civil partners. As noted earlier, for spouses and civil partners, the 1985 Act allows a court to set aside a prenuptial or separation agreement on the grounds it was not fair or reasonable at the time it was entered into.i
However, under the general law of contract, there are restrictions on a couple's freedom to contract. For example, a contract can be struck down on grounds including:
error, where the couple misunderstood some material aspect of the contract or the circumstances surrounding it
fraud, that is, deception for gain, and extortion, threats of something to obtain someone's consent
facility and circumvention, where a vulnerable person has been taken advantage of for someone else's gain
undue influence, where there has been an abuse of a position of trust.
The next section of the briefing explains that a cohabitant might make a financial claim under the Family Law (Scotland) Act 2006 ('the 2006 Act') at the point of relationship breakdown.ii
The 2006 Act does not say what the legal relationship is between a prior cohabitation agreement and a later financial claim under the 2006 Act. This contrasts with the position for spouses and civil partners, where the legislation says that, in certain circumstances, a legally binding agreement is a relevant consideration for the court.iii
This section of the briefing now considers the Family Law (Scotland) Act 2006 ('the 2006 Act'):
The most important provision of the 2006 Act permits a former cohabitant to apply to the court for a financial award from the other person in the couple.i
Two other statutory provisions cover rights in certain household goods, as well as certain savings and property.ii
First, the possibility of a financial claim for cohabitants under the 2006 Act is explored.
To make a financial claim, or to fall in scope of the other relevant sections of the 2006 Act, the person must qualify as a cohabitant under the 2006 Act.i
The original definition of this term still appears on the face of the 2006 Act. However, the 2006 Act must now be read with section 4 of the Marriage and Civil Partnership (Scotland) Act 2014. Accordingly, for the purposes of the 2006 Act, the working definition of a cohabitant (whether they are part of a mixed-sex or a same-sex couple) is as follows:
A person who is (or was) living with another person as if they were spouses.ii
In deciding whether a person qualifies under this definition, the 2006 Act directs the court to have regard to:
the length of the cohabitation
the nature of the relationship during that period
the nature and extent of any financial arrangements during that period.iii
Under the 2006 Act, the court action must be made not later than one year after the day on which cohabitants stop cohabiting.12 The court has no discretion to extend the time limit in any circumstances.i
Section 28 of the 2006 Act empowers the court to make the following orders:
an order for the payment of a capital sum (referred to by solicitors as a section 28(2)(a) order)
an order to pay the applicant an amount to cover any economic burden of caring, after the end of cohabitation, for a child of whom the cohabitants are parents (a section 28(2)(b) order)
such interim order (that is, a temporary one) as the court thinks fit, pending final resolution of the case.i
Unlike with divorce or dissolution, the court cannot make an order in respect of the transfer of property, or orders in respect of pensions.
Payments of a capital sum can be deferred to a future date and paid in instalments.ii
There is some academic debate as to whether an order for a periodic allowance might be competent for a section 28(2)(b) order. 12 One leading textbook says that legal practitioners and courts are proceeding on the basis that claims are limited to a capital sum.1
In considering whether to make any of the court orders under section 28 of the 2006 Act, the 2006 Act says the court must "have regard to" certain issues.i In practice, the significance of these issues is in the context of a section 28(2)(a) order (an order for the payment of a capital sum).
Drawing its inspiration from the statutory regime for divorce and dissolution, these issues are:
whether, and if so to what extent, the cohabitant defending the court claim (the defender) has gained an economic advantage from the contributions made by the applicant
whether, and if so to what extent, the applicant has suffered economic disadvantage in the interests of the defender and any relevant child.
Which children are covered?
A relevant child, considered as part of the assessment of any economic advantages and disadvantages, is under the age of 16 and is either a child of the cohabitants or was accepted by the cohabitants as a child of their family.ii
This is a broader, but overlapping, category of child compared to the child who is the focus of a section 28(2)(b) order, that is, the order specifically relating to the financial burden of childcare. Such an order can only be made in respect of a child of whom the cohabitants are the parents.
Contributions include indirect and non-financial contributions made by looking after any relevant child or any house in which the couple lived.
Economic advantage includes gains in capital, income or earning capacity; economic disadvantage includes losses in capital, income and earning capacity.iii
In respect of any possible section 28(2)(a) order, the court must then consider:iv
the extent to which any economic advantage derived by the defender from the applicant's contributions is offset by any disadvantage sustained by the defender in the interests of the applicant and any relevant child
the extent to which any economic disadvantage sustained by the applicant in the interests of the defender is offset by any economic advantage the applicant has derived from the defender's contributions.
It is only if, after this balancing exercise, there is an economic imbalance in favour of the applicant, that a section 28(2)(a) order can be made.
Gow v Grant (2012)1
In this leading UK Supreme Court case, the court emphasised that the overarching principle here was one of fairness rather than precise economic calculation focusing on where the couple were at the beginning of their relationship compared to where they were at the end.
Essentially, a broad brush approach is required and any balancing exercise should be done in a non-technical and practicable way.2
The 2006 Act also contains provisions on certain issues associated with the couple's property.
Specifically, it covers household goods, as well as certain savings and property. The first topic is considered in this section of the briefing and the second topic is covered in the next section.
To be covered by the parts of the 2006 Act on household goods and certain savings and property, the couple in question must qualify as cohabitants under the statutory definition in the 2006 Act.
Section 26 of the 2006 Act covers the situation where the ownership of any household goods might be an issue between the couple.
Section 26 says that there is a presumption (broadly, a fixed starting point for the court) that each cohabitant has an equal share of ownership in any household goods acquired during the period of cohabitation.
Household goods includes ornamental or decorative goods. It does not include, for example, money, shares, a car (or other road vehicle) or any domestic animal, such as a pet.i
It does not include those items gifted to one cohabitant, or inherited by them, from a third party.ii
The statutory presumption relating to the ownership of household goods is rebuttable, meaning it can be departed from in an individual case if the circumstances justify this.iii
Section 27 of the 2006 Act, like section 26 (household goods), is adapted from an equivalent provision for spouses and civil partners (and not so far discussed in this briefing).i
The provision for spouses and civil partners aimed to accommodate the traditional marriage. Specifically, it focused on the situation where one spouse receives a housekeeping allowance from the other.
Section 27 of the 2006 Act says that any savings made from housekeeping allowances by cohabitants, or any property bought with such money, should be owned equally between them.
This rule applies unless there is any agreement to the contrary between the cohabitants.
Significantly, property, as defined in section 27, does not include a residence used by the cohabitants as the sole or main home in which they live (or lived) together.ii
It is important to emphasise the limited regard the 2006 Act has to heritable property, that is land and buildings.
Heritable property includes, for example, any home the couple share (or rather shared) and any investment properties, such as flats which are rented out.
The approach of the 2006 Act here to heritable property was a deliberate choice by policymakers compared to the approach for spouses and civil partners set out earlier in the briefing.
For cohabitants, the ordinary rules of property law apply. This means that where the legal title to land or property is in the name of both cohabitants, then they will own in jointly, in the proportions set out in the title documents (or, to use the more traditional term, title deeds).
If the legal title is registered in the name of one of the cohabitants, only that cohabitant is the owner of the property. This can lead to unfairness, if, for example, the non-owning cohabitant has made contributions relating to that property, such as contributions to the purchase price, home improvements, mortgage payments or contributions to household bills.
However, if a cohabitant's application to the court is made within the one-year statutory time limit, these contributions may form part of an assessment of economic advantages and disadvantages for the purposes of a possible financial award under the 2006 Act.
There is also a potential role for the law of unjustified enrichment, discussed in the next section of the briefing.
Unjustified enrichment (the scope of which extends beyond family law) is a legal remedy based on the idea that where one person has benefited without legal justification at the expense of another person the law ought to compel them to provide compensation.
A key issue associated with this area of law (over a long time period) is whether claims can be pursued on the basis of unjustified enrichment when other legal remedies are available to a person.
Some judges have strongly agreed that all other remedies must take priority over unjustified enrichment, while others thought it was a matter of circumstance for each case.1
Pert v McCaffrey (2020)2
This leading case related to a dispute between cohabitants and concerned the interrelationship between the law of unjustified enrichment and possible financial claims under section 28 of the 2006 Act. The cohabitant applying to the court could not rely on section 28 as she had not made any such claim within the one-year statutory time limit.
On appeal, the Court of Session decided that an (expired) claim under section 28 was not an alternative remedy which might affect the availability of unjustified enrichment as a possible remedy. In other words, the expired section 28 remedy did not prevent the case being made for unjustified enrichment.
For a concise history of the judicial thinking in this area prior to this case, and related challenges for solicitors, see a 2020 article by a legal practitioner in the Journal of the Law Society of Scotland.3
The main type of ADR currently used is family mediation. Mediation involves an independent and impartial person helping the couple to negotiate a potential solution to a problem in a confidential setting.
The couple, not the mediator, decide the terms of any agreement. The outcome is not legally binding without further steps being taken separately.
On entering into a legally binding agreement, see the earlier sections of the briefing for spouses and civil partners, and for cohabitants.
Mediation in family cases is mainly provided by third sector organisations or by solicitors who are also qualified as mediators.
There is no compulsion to participate in mediation. Both people must be willing to participate voluntarily for the process to work.
The cost of mediation depends on the type of mediation service that is used, as well as eligibility for legal aid.
For people on low and moderate incomes, legal aid may be available for family mediation (but not for other forms of ADR).
With collaborative law, the couple and each of their lawyers meet together in a four-way conference, aiming to negotiate a fair outcome.
A key aspect of the process is that everyone enters into a contract at the outset. This prevents the couple from instructing the collaborative lawyers to raise a court action if their negotiation fails. The aim is to incentivise all those participating to reach a successful outcome.
In arbitration, a third party, who often has specialist expertise or knowledge, will decide how the dispute should be resolved. The outcome is legally binding. Arbitration is more commonly used in commercial or employment law cases, however, it can also be used in family cases.
This final section of the briefing outlines some sources of advice and support for constituents.
Some solicitors are family law specialists. If someone needs help finding a solicitor, as mentioned earlier, the Law Society of Scotland has an online search facility. An individual can search by specialism, by geographical area and identify solicitors, or firms of solicitors, who take on legal aid cases.
In addition, the Family Law Association, a membership organisation for family law specialists, has a similar online search facility.
SPICe has also published a briefing entitled Legal advice - where to go and how to pay.1
There are various ways to find a family mediator in Scotland:
The network of Relationships Scotland provides family mediation services across Scotland. See Relationships Scotland's webpage on family mediation for more details.
An individual can find a local mediation service using the search facility on the Scottish Mediation website.
CALM Scotland offers mediation services from experienced lawyer-mediators that can help with ways of resolving disputes and problems associated with parents separating.
For providers of collaborative law, a specific type of ADR for family disputes discussed earlier, the online search facility of the organisation, Consensus Scotland, is the recommended starting point.
Likewise, for arbitration in family cases, a legally binding form of ADR, the online search facility provided by the Family Law Arbitration Group Scotland (FLAGS) can enable a search for solicitors specialising in this area.