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

Document Cited authorities 11 Cited in Related
Vincent
Date01 September 2015
Published date01 September 2015
Pages311-332
DOI10.3366/elr.2015.0293
Author
INTRODUCTION

The autonomy/protection debate dominates discussions over whether financial provision should be available on the breakdown of an unmarried cohabitation. Recurrently, however, this debate presents as a women's issue: research has well-documented that women typically suffer greater economic hardship upon separation than men.1

H Fisher and H Low, “Financial Implications of Relationship Breakdown: Does Marriage Matter?” (2012) Institute of Fiscal Studies Working Papers W12/17, 2.

This gendered disadvantage arises out of women's inclination towards the domestic sphere: women typically assume a more domestic role in relationships, often at the expense of employment opportunities.2

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 24th Report (2008) 53; R Breen and L Cooke, “The persistence of the gendered division of domestic labour” (2005) 21(1) European Sociological Review 43.

 Therefore, while men's household income will increase at the end of a relationship, women are more likely to suffer a drop in income leaving them economically vulnerable whether they are married or cohabiting.3

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%).

 Yet, opinions are divided over whether the law should protect such economically vulnerable women in cohabiting relationships. For Baroness Deech, who vehemently opposes a cohabitation regime, a legal response would undermine the autonomy of couples who have chosen not to marry.4

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

 Moreover, Deech argues that a corrective law is unnecessary for such gender imbalances, as gender equality already exists: women are no longer excluded from education or employment on account of their gender and thus are just as capable as men at becoming economically independent.5

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.

However, critics argue that Deech over-relies on the concept of choice, as only a small proportion of cohabitants actually wish to avoid the legal consequences of marriage6

See A Barlow and J Smithson, “Legal Assumptions, Cohabitants’ Talk and the Rocky Road to Reform” (2010) 22(3) CFLQ 328.

and therefore she ignores “the misinformed couples, the no-choice couples, and the inertia couples”.7

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

 Moreover, Deech's gender equality arguments overlook the systemic inequalities that women face in the domestic and employment spheres. Even with women's greater participation in the workforce,8

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.

 the division of paid and unpaid work carried out within the household remains gendered, with women making most of the unpaid domestic contributions.9

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

 Similarly, in the employment sphere, women earn considerably less than men: there is currently a 19.1% gender pay gap in the UK10

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.

 (16.9% in Scotland11

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

), and women are far more likely than men to work part-time.12

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.

 Indeed, women's predisposition to the domestic sphere may influence their participation in the workforce: child-care needs and responsibilities may explain the employment patterns of women and consequently the existence of such a wide gender pay gap.13

Office for National Statistics (n 12) 26.

 As a result of these social patterns, as Sutherland notes, “equality of opportunity, employment and income remains an elusive aspiration” for many women,14

Sutherland (n 7) 147.

 especially where they remain the primary caregiver for children.15

Fisher and Low (n 1).

 Thus, financial provision at the end of a relationship is a fundamentally important mechanism to limit the extent of gendered economic vulnerability

However, prior to 2006, unmarried cohabitants in Scotland had no right to financial provision on relationship breakdown.16

Except for marriage by cohabitation with habit and repute, where cohabitants could be classified as married if they met certain requirements at common law. See J Thomson, Family Law in Scotland, 4th edn (2002) 19–23; this doctrine, however, was very rarely used (see Thomson, 22) and has since been abolished by the Family Law (Scotland) Act 2006, s 3.

Instead their only recourse was in the limited realms of Scotland's property law regime, namely the law of unjust enrichment.17

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).

 Not only was this area overly complex, but commentators considered these remedies wholly inadequate for dealing with the realities of cohabitation and the financial hardship that frequently results upon separation.18

Wasoff et al (n 17) 18.

 Moreover, given that it was very difficult to establish a claim on the basis of non-financial domestic contributions,19

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.

 it was typically women who were left in an economically vulnerable position on relationship breakdown. In response to growing calls for reform, the Scottish Parliament introduced section 28 of the Family Law (Scotland) Act 2006 (henceforth FL(S)A 2006) which sets out a system of financial provision for separating cohabitants.20

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.

 Alongside introducing greater certainty, fairness and clarity into the law through a statutory basis,21

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.

 a major rationale behind section 28 was to protect those who became financially vulnerable on separation.22

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.

 At the same time, the Scottish Parliament was keen to ensure the cohabitation regime was distinct from marriage, in order to respect individuals’ (supposed) choice to opt out of marriage/civil partnership.23

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

 Therefore, section 28's design largely followed the Scottish Law Commission's (henceforth SLC)24

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

 1992 recommendations which sought to parallel one of the five principles operating in the matrimonial context: section 9(1)(b) of the Family Law (Scotland) Act 1985 (henceforth FL(S)A 1985), rebalancing economic advantages/disadvantages.25

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.

 However, not only did the Scottish Government significantly alter the text of the SLC's recommendations,26

Discussed below at n 45.

 but it additionally drew inspiration from section 9(1)(c) FL(S)A 1985, sharing the economic burden of childcare amongst the parties. Thus, Scotland's cohabitation regime centres on redressing economic imbalances that arise upon separation to ensure no-one is dramatically better or worse off financially than the other as a result of the contributions made in the relationship. Fundamentally, this...

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