Gender Imbalances, Economic Vulnerability and Cohabitation: Evaluating the Gendered Impact of Section 28 of the Family Law (Scotland) Act 2006

R Crompton and C Lyonette, “Who does the Housework? The Division of Labour Within the Home”, in A Park, J Curtice, K Thomson, M Philips, M Johnson and E Clery (eds), British Social Attitudes: the 24^th Report (2008) 53; R Breen and L Cooke, “The persistence of the gendered division of domestic labour” (2005) 21(1) European Sociological Review 43.

H Fisher and H Low, “Who Wins, Who Loses and Who Recovers from Divorce?”, in J Miles and\break R Probert (eds), Sharing Lives, Dividing Assets: An Interdisciplinary Study (2009) 227; Fisher and Low (n 1) 2. However, the drop in income is lower for cohabiting women (23%) than married women (55%).

R Deech, “Cohabitation” (2010) 40(1) Fam LJ 39, 42–43.

R Deech, “What's a Woman Worth?” (2009) 39 Fam LJ 1140. Although this is in the context of spousal maintenance, Deech reflects these sentiments in the cohabitation context. See Deech (n 4) 39.

E Sutherland, “From ‘Bidie-In’ to ‘Cohabitant’ in Scotland: The Perils of Legislative Compromise” (2013) 27(2) IJLPF 143, 146.

Office for National Statistics, Statistical Bulletin: UK Labour Market August 2014, 30, available at http://www.ons.gov.uk/ons/dcp171778_372372.pdf. Since 1971, economic inactivity for men has been rising while it has been falling for women. Now 68 per cent of women are in employment in comparison to 78 per cent of men; the smallest gap in employment yet.

Crompton and Lyonette (n 2); Breen and Cooke (n 2). This occurs even in relationships where both partners are in employment.

Office for National Statistics, Annual Survey of Hours and Earnings, 2014 Provisional Results Patterns of Pay (November 2014), 10, available at http://www.ons.gov.uk/ons/dcp171778_385428.pdf. This figure includes both full-time and part-time workers.

Close the Gap, Gender pay gap statistics (2014), 3, available at http://www.closethegap.org.uk/content/resources/CTG-Working-Paper-11---Statistics.pdf.

Office for National Statistics, Patterns of pay – 1997–2013 ASHE Results (2014), 5–7, available at http://www.ons.gov.uk/ons/dcp171766_353368.pdf. This is even lower for men in Scotland where 75% of part-time workers are women. See Close the Gap (n 11) 4. Men are also far less likely to work long-time in a part-time position than women. See L Grant, S Yeandle and L Buckner, “Working Below Potential: Women and Part-Time Work” (2005) EOC Working Paper Series No 40.

Office for National Statistics (n 12) 26.

Sutherland (n 7) 147.

Fisher and Low (n 1).

F Wasoff, J Miles, and E Mordaunt, “Legal Practitioners’ Perspectives on the Cohabitation Provisions of the Family Law (Scotland) Act 2006” (2010) 17, fn 15, available at http://www.crfr.ac.uk/assets/Cohabitation-final-report.pdf. See also H MacQueen, Unjustified Enrichment, 2nd edn (2009).

Wasoff et al (n 17) 18.

Wasoff et al (n 17) 17, fn 16. See also J Carruthers, “Unjustified enrichment and the family: re-visiting the remedies” (2000) 5(1) SLPQ 58 at 68–69.

Alongside other provisions relating to cohabiting couples set out in Family Law (Scotland) Act 2006 ss 25–30 that also strengthened cohabitants’ rights to certain household goods and provided financial provision on the death of a cohabiting partner.

Scottish Executive, The Family Law (Scotland) Bill: Policy Memorandum (2005), para 64, available at http://www.scottish.parliament.uk/S2_Bills/Family%20Law%20(Scotland)%20Bill/b36s2-introd-pm.pdf.

T Guthrie and H Hiram, “Property and cohabitation: understanding the Family Law (Scotland) Act 2006” (2007) 11(2) EdinLR 208 at 218. See also Scottish Executive (n 21) para 66.

Scottish Executive (n 21) para 65. Also note the above criticisms about ‘choice’ at nn 7 and 8.

Report on Family Law (Scot Law Com No 135, 1992).

Family Law (Scotland) Act 1985 s 9(1) sets out five principles designed to guide the courts when making an order of aliment in the matrimonial context: s 9(1)(a) equal sharing; s 9(1)(b) rebalancing economic advantages and disadvantages; s 9(1)(c) sharing the economic burden of caring; s 9(1)(d) maintenance of no more than three years; s 9(1)(e) maintenance over a period of reasonable time. The SLC believed ss 9(1)(a), (d) and (e) to be inappropriate in the cohabitation context, while s 9(1)(c) was felt to be covered by existing legislation. Thus, they proposed a cohabitation regime that drew inspiration from s 9(1)(b): Report on Family Law (n 24) paras 16.14–16.23.

Discussed below at n 45.