The Law Commission

APPENDIX A

•    ENGLISH LEGISLATION

FINANCIAL PROVISION ON DIVORCE

APPENDIX B

•    SCOTTISH LEGISLATION

FINANCIAL PROVISION ON DIVORCE

Family Law (Scotland) Act 1985

Section 8 Orders for financial provision

(1) In an action for divorce, either party to the marriage and in an action for dissolution of a civil partnership, either partner may apply to the court for one or more of the following orders—

(a) an order for the payment of a capital sum to him by the other party to the action;

(aa) an order for the transfer of property to him by the other party to the action;

(b) an order for the making of a periodical allowance to him by the other party to the [action];

(baa) a pension sharing order;

(ba) an order under section 12A(2) or (3) of this Act;

(c) an incidental order within the meaning of section 14(2) of this Act.

(2) Subject to sections 12 to 15 of this Act, where an application has been made under subsection (1) above, the court shall make such order, if any, as is—

(a) justified by the principles set out in section 9 of this Act; and

(b) reasonable having regard to the resources of the parties.

(3) An order under subsection (2) above is in this Act referred to as an "order for financial provision".

[ … ]

Section 9 Principles to be applied

(1) The principles which the court shall apply in deciding what order for financial provision, if any, to make are that—

(a) the net value of the matrimonial property should be shared fairly between the parties to the marriage or as the case may be the net value of the partnership property should be so shared between the partners in the civil partnership;

(b) fair account should be taken of any economic advantage derived by either person from contributions by the other, and of any economic disadvantage suffered by either person in the interests of the other person or of the family;

(c) any economic burden of caring—

(i) after divorce, for a child of the marriage under the age of 16 years,

(ii) after dissolution of the civil partnership, for a child under that age who has been accepted by both partners as a child of the family,

should be shared fairly between the persons;

(d) a person who has been dependent to a substantial degree on the financial support of the other person should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years from—

(i) the date of the decree of divorce, to the loss of that support on divorce,

(ii) the date of the decree of dissolution of the civil partnership, to the loss of that support on dissolution;

(e) a person who at the time of the divorce or of the dissolution of the civil partnership, seems likely to suffer serious financial hardship as a result of the divorce or dissolution should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period.

(2) In subsection (1)(b) above and section 11(2) of this Act—

"economic advantage" means advantage gained whether before or during the marriage or civil partnership and includes gains in capital, in income and in earning capacity, and "economic disadvantage" shall be construed accordingly;

"contributions" means contributions made whether before or during the marriage or civil partnership; and includes indirect and non-financial contributions and, in particular, any such contribution made by looking after the family home or caring for the family.

Section 10 Sharing of value of matrimonial property

(1) In applying the principle set out in section 9(1)(a) of this Act, the net value of the matrimonial property or partnership property shall be taken to be shared fairly between persons when it is shared equally or in such other proportions as are justified by special circumstances.

(2) The net value of the property shall be the value of the property at the relevant date after deduction of any debts incurred by one or both of the parties to the marriage or as the case may be of the partners—

(a) before the marriage so far as they relate to the matrimonial property or before the registration of the partnership so far as they relate to the partnership property, and

(b) during the marriage or partnership,

which are outstanding at that date.

(3) In this section "the relevant date" means whichever is the earlier of—

(a) subject to subsection (7) below, the date on which the persons ceased to cohabit;

(b) the date of service of the summons in the action for divorce or for dissolution of the civil partnership.

(4) Subject to subsection (5) below, in this section and in section 11 of this Act "the matrimonial property" means all the property belonging to the parties or either of them at the relevant date which was acquired by them or him (otherwise than by way of gift or succession from a third party)—

(a) before the marriage for use by them as a family home or as furniture or plenishings for such home; or

(b) during the marriage but before the relevant date.

[(4A) Equivalent definition of partnership property.]

(5) The proportion of any rights or interests of either person—

(a) under a life policy or similar arrangement; and

(b) in any benefits under a pension arrangement which either person has or may have (including such benefits payable in respect of the death of either person),

which is referable to the period to which subsection (4)(b) above refers shall be taken to form part of the matrimonial property or partnership property.

(6) In subsection (1) above "special circumstances", without prejudice to the generality of the words, may include—

(a) the terms of any agreement between the persons on the ownership or division of any of the matrimonial property or partnership property;

(b) the source of the funds or assets used to acquire any of the matrimonial property or partnership property where those funds or assets were not derived from the income or efforts of the persons during the marriage or partnership;

(c) any destruction, dissipation or alienation of property by either person;

(d) the nature of the matrimonial property or partnership property, the use made of it (including use for business purposes or as a family home) and the extent to which it is reasonable to expect it to be realised or divided or used as security;

(e) the actual or prospective liability for any expenses of valuation or transfer of property in connection with the divorce or the dissolution of the civil partnership.

[ … ]

Section 11 Factors to be taken into account

(1) In applying the principles set out in section 9 of this Act, the following provisions of this section shall have effect.

(2) For the purposes of section 9(1)(b) of this Act, the court shall have regard to the extent to which—

(a) the economic advantages or disadvantages sustained by either person have been balanced by the economic advantages or disadvantages sustained by the other person, and

(b) any resulting imbalance has been or will be corrected by a sharing of the value of the matrimonial property or the partnership property or otherwise.

(3) For the purposes of section 9(1)(c) of this Act, the court shall have regard to—

(a) any decree or arrangement for aliment for the child;

(b) any expenditure or loss of earning capacity caused by the need to care for the child;

(c) the need to provide suitable accommodation for the child;

(d) the age and health of the child;

(e) the educational, financial and other circumstances of the child;

(f) the availability and cost of suitable child-care facilities or services;

(g) the needs and resources of the persons; and

(h) all the other circumstances of the case.

(4) For the purposes of section 9(1)(d) of this Act, the court shall have regard to—

(a) the age, health and earning capacity of the person who is claiming the financial provision;

(b) the duration and extent of the dependence of that person prior to divorce or to the dissolution of the civil partnership;

(c) any intention of that person to undertake a course of education or training;

(d) the needs and resources of the persons; and

(e) all the other circumstances of the case.

(5) For the purposes of section 9(1)(e) of this Act, the court shall have regard to—

(a) the age, health and earning capacity of the person who is claiming the financial provision;

(b) the duration of the marriage or of the civil partnership;

(c) the standard of living of the persons during the marriage or civil partnership;

(d) the needs and resources of the persons; and

(e) all the other circumstances of the case.

(6) In having regard under subsections (3) to (5) above to all the other circumstances of the case, the court may, if it thinks fit, take account of any support, financial or otherwise, given by the person who is to make the financial provision to any person whom he maintains as a dependant in his household whether or not he owes an obligation of aliment to that person.

(7) In applying the principles set out in section 9 of this Act, the court shall not take account of the conduct of either party to the marriage or as the case may be of either partner unless—

(a) the conduct has adversely affected the financial resources which are relevant to the decision of the court on a claim for financial provision; or

(b) in relation to section 9(1)(d) or (e), it would be manifestly inequitable to leave the conduct out of account.

Section 12 Orders for payment of capital sum or transfer of property

(1) An order under section 8(2) of this Act for payment of a capital sum or transfer of property may be made—

(a) on granting decree of divorce or of dissolution of a civil partnership; or

(b) within such period as the court on granting the decree may specify.

[ … ]

Section 13 Orders for periodical allowance

(1) An order under section 8(2) of this Act for a periodical allowance may be made—

(a) on granting decree of divorce or of dissolution of a civil partnership;

(b) within such period as the court on granting the decree may specify; or

(c) after such decree where—

(i) no such order has been made previously;

(ii) application for the order has been made after the date of decree; and

(ii) since the date of decree there has been a change of circumstances.

(2) The court shall not make an order for a periodical allowance under section 8(2) of this Act unless—

(a) the order is justified by a principle set out in paragraph (c), (d) or (e) of section 9(1) of this Act; and

(b) it is satisfied that an order for payment of a capital sum or for transfer of property, or a pension sharing order, under that section would be inappropriate or insufficient to satisfy the requirements of the said section 8(2).

[ … ]

FINANCIAL PROVISION ON SEPARATION FOR COHABITANTS

Family Law (Scotland) Act 2006

Section 25 Meaning of "cohabitant" in sections 26 to 29

(1) In sections 26 to 29, "cohabitant" means either member of a couple consisting of—

(a) a man and a woman who are (or were) living together as if they were husband and wife; or

(b) two persons of the same sex who are (or were) living together as if they were civil partners.

(4) In determining for the purposes of any of sections 26 to 29 whether a person ("A") is a cohabitant of another person ("B"), the court shall have regard to—

(a) the length of the period during which A and B have been living together (or lived together);

(b) the nature of their relationship during that period; and

(c) the nature and extent of any financial arrangements subsisting, or which subsisted, during that period.

[ … ]

Section 26 Rights in certain household goods

(1) Subsection (2) applies where any question arises (whether during or after the cohabitation) as to the respective rights of ownership of cohabitants in any household goods.

(2) It shall be presumed that each cohabitant has a right to an equal share in household goods acquired (other than by gift or succession from a third party) during the period of cohabitation.

(3) The presumption in subsection (2) shall be rebuttable.

(4) In this section, "household goods" means any goods (including decorative or ornamental goods) kept or used at any time during the cohabitation in any residence in which the cohabitants are (or were) cohabiting for their joint domestic purposes; but does not include—

(a) money;

(b) securities;

(c) any motor car, caravan or other road vehicle; or

(d) any domestic animal.

Section 27 Rights in certain money and property

(1) Subsection (2) applies where, in relation to cohabitants, any question arises (whether during or after the cohabitation) as to the right of a cohabitant to—

(a) money derived from any allowance made by either cohabitant for their joint household expenses or for similar purposes; or

(b) any property acquired out of such money.

(2) Subject to any agreement between the cohabitants to the contrary, the money or property shall be treated as belonging to each cohabitant in equal shares.

(3) In this section "property" does not include a residence used by the cohabitants as the sole or main residence in which they live (or lived) together.

Section 28 Financial provision where cohabitation ends otherwise than by death

(1) Subsection (2) applies where cohabitants cease to cohabit otherwise than by reason of the death of one (or both) of them.

(2) On the application of a cohabitant (the "applicant"), the appropriate court may, after having regard to the matters mentioned in subsection (3)—

(a) make an order requiring the other cohabitant (the "defender") to pay a capital sum of an amount specified in the order to the applicant;

(b) make an order requiring the defender to pay such amount as may be specified in the order in respect of any economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents;

(c) make such interim order as it thinks fit.

(3) Those matters are—

(a) whether (and, if so, to what extent) the defender has derived economic advantage from contributions made by the applicant; and

(b) whether (and, if so, to what extent) the applicant has suffered economic disadvantage in the interests of—

(i) the defender; or

(ii) any relevant child.

(4) In considering whether to make an order under subsection (2)(a), the appropriate court shall have regard to the matters mentioned in subsections (5) and (6).

(5) The first matter is the extent to which any economic advantage derived by the defender from contributions made by the applicant is offset by any economic disadvantage suffered by the defender in the interests of—

(a) the applicant; or

(b) any relevant child.

(6) The second matter is the extent to which any economic disadvantage suffered by the applicant in the interests of—

(a) the defender; or

(b) any relevant child,

is offset by any economic advantage the applicant has derived from contributions made by the defender.

(7) In making an order under paragraph (a) or (b) of subsection (2), the appropriate court may specify that the amount shall be payable—

(a) on such date as may be specified;

(b) in instalments.

(8) Any application under this section shall be made not later than one year after the day on which the cohabitants cease to cohabit.

(9) In this section—

"appropriate court" means—

(a) where the cohabitants are a man and a woman, the court which would have jurisdiction to hear an action of divorce in relation to them if they were married to each other;

(b) where the cohabitants are of the same sex, the court which would have jurisdiction to hear an action for the dissolution of the civil partnership if they were civil partners of each other;

"child" means a person under 16 years of age;

"contributions" includes indirect and non-financial contributions (and, in particular, any such contribution made by looking after any relevant child or any house in which they cohabited); and

"economic advantage" includes gains in—

(a) capital;

(b) income; and

(c) earning capacity;

and "economic disadvantage" shall be construed accordingly.

(10) For the purposes of this section, a child is "relevant" if the child is—

(a) a child of whom the cohabitants are the parents;

(b) a child who is or was accepted by the cohabitants as a child of the family.

Section 29 Application to court by survivor for provision on intestacy

(1) This section applies where—

(a) a cohabitant (the "deceased") dies intestate; and

(b) immediately before the death the deceased was—

(i) domiciled in Scotland; and

(ii) cohabiting with another cohabitant (the "survivor").

(2) Subject to subsection (4), on the application of the survivor, the court may—

(a) after having regard to the matters mentioned in subsection (3), make an order—

(i) for payment to the survivor out of the deceased's net intestate estate of a capital sum of such amount as may be specified in the order;

(ii) for transfer to the survivor of such property (whether heritable or moveable) from that estate as may be so specified;

(b) make such interim order as it thinks fit.

(3) Those matters are—

(a) the size and nature of the deceased's net intestate estate;

(b) any benefit received, or to be received, by the survivor—

(i) on, or in consequence of, the deceased's death; and

(ii) from somewhere other than the deceased's net intestate estate;

(c) the nature and extent of any other rights against, or claims on, the deceased's net intestate estate; and

(d) any other matter the court considers appropriate.

(4) An order or interim order under subsection (2) shall not have the effect of awarding to the survivor an amount which would exceed the amount to which the survivor would have been entitled had the survivor been the spouse or civil partner of the deceased.

[ … ]

(6) Any application under this section shall be made before the expiry of the period of 6 months beginning with the day on which the deceased died.

(7) In making an order under paragraph (a)(i) of subsection (2), the court may specify that the capital sum shall be payable—

(a) on such date as may be specified;

(b) in instalments.

(8) In making an order under paragraph (a)(ii) of subsection (2), the court may specify that the transfer shall be effective on such date as may be specified.

(9) If the court makes an order in accordance with subsection (7), it may, on an application by any party having an interest, vary the date or method of payment of the capital sum.

(10) In this section—

"intestate" shall be construed in accordance with section 36(1) of the Succession (Scotland) Act 1964 (c.41);

"legal rights" has the meaning given by section 36(1) of the Succession (Scotland) Act 1964 (c.41);

"net intestate estate" means so much of the intestate estate as remains after provision for the satisfaction of—

(a) inheritance tax;

(b) other liabilities of the estate having priority over legal rights and the prior rights of a surviving spouse or surviving civil partner; and 40

(c) the legal rights, and the prior rights, of any surviving spouse or surviving civil partner; and

"prior rights" has the meaning given by section 36(1) of the Succession (Scotland) Act 1964 (c.41).

APPENDIX C

•    SCHEMES FOR COHABITANTS IN OTHER JURISDICTIONS

INTRODUCTION

The table that follows lists a number of jurisdictions that have enacted statutory schemes that apply to cohabitants who satisfy statutory eligibility criteria. The schemes apply automatically, without the need for cohabitants to enter into a formal contract or register their relationship with State authorities. Many, but not all, of the schemes allow cohabitants to opt out by entering into a formal contract or by informing State authorities that they wish their relationship to fall outside the scheme.

APPENDIX D

•    "OPT-IN" REGIMES IN OTHER JURISDICTIONS

INTRODUCTION

The table that follows lists a number of jurisdictions that have enacted statutory registered partnership regimes. Couples can choose to opt in to these regimes by complying with the statutory procedures. The legal consequences of opting in vary considerably between jurisdictions.

APPENDIX E

•    ACKNOWLEDGEMENTS

LEGAL ADVISORY GROUP

We are particularly keen to acknowledge the help that we have received from members of our legal advisory group, which comprises:

Professor Rebecca Bailey-Harris, University of Bristol

David Burles, barrister

Jane Craig, solicitor

Mark Harper, solicitor

District Judge Richard Harper

Angela Lake Carroll, Legal Services Commission

Ann Lewis, Advice Services Alliance

The Honourable Mr Justice Munby

Rebecca Probert, University of Warwick

Dr Jens Scherpe, University of Cambridge

Marilyn Stowe, solicitor

District Judge Helen Wood

OTHER INDIVIDUALS AND ORGANISATIONS

We have corresponded with and spoken to a number of individuals and organisations during the course of preparing this consultation paper. We are grateful to them for their assistance. The contents of this consultation paper are entirely our responsibility.

Individuals

Miranda Allardice, barrister

Dave Allison, solicitor

Sarah Anticoni, solicitor

Bill Atkin, University of Victoria, Wellington, New Zealand

Jan Atkinson, solicitor

Professor Nick Bala, Queen's University, Ontario, Canada

Emma Baldwin, Free Representation Unit

Gary Barker, solicitor

Professor Anne Barlow, University of Exeter

Professor Chris Barton, University of Staffordshire

Julia Bateman, Law Society Brussels Office

Gillian Bishop, solicitor

Tina Bond, solicitor and University of Newcastle

Professor Susan Boyd, University of British Columbia, Canada

Dr Carole Burgoyne, University of Exeter

Gray Cameron, barrister, Auckland

Valerie Cane, Treasury Solicitor's Office, Bona Vacantia Division

Dr Janeen Carruthers, University of Glasgow

Vicki Chapman, Law Society of England and Wales

Michael Clancy, Law Society of Scotland

Dr Victoria Clark, University of the West of England

Lynda Clarke, Centre for Population Studies, London School of Hygiene and Tropical Medicine

Professor Eric Clive, University of Edinburgh

Lisa Cohen, Jewish Union for Multiple Parenting

Professor Elizabeth Cooke, University of Reading

Daniel Coombes, solicitor

Edward Cousins QC, Adjudicator to Her Majesty's Land Registry

Professor Elizabeth Crawford, University of Glasgow

Dr Stephen Cretney, All Souls College, Oxford

Baroness Deech

Catherine Dixon, solicitor, Northern Ireland

Professor Antony Dnes, University of Hull

Christine Dooley, barrister

Professor Gillian Douglas, University of Cardiff

Sally Dowding, solicitor

Eleanor Dowling, Society of Pensions Consultants

Morag Driscoll, solicitor and children's reporter, Scotland

Carol Duncan, Scottish Executive

John Eekelaar, University of Oxford

Professor John Ermisch, University of Essex

Angela Evans, Treasury Solicitors Office, Bona Vacantia Division

Colleen Farrell, Law Society of the Republic of Ireland

Dr Belinda Fehlberg, University of Melbourne, Australia

Pauline Fowler, mediator

Henry Frydenson, solicitor

David Gleed, Treasury Solicitors Office, Bona Vacantia Division

Anil D Goonewardene, the Buddhist Society

Lynn Graham, Legal Services Commission

Venetia Grove, solicitor

Rosie Harding, University of Kent

Andrew Harrop, Age Concern

John Haskey, University of Oxford

Debbie Hedrick, Scottish Executive

Peter Hennessy, New South Wales Law Reform Commission, Australia

Dr Jessica Heynis, University of Cape Town, South Africa

Lisa Hutton, Tasmanian Department of Justice, Australia

Clare Irvine, Northern Irish Law Reform Advisory Committee

Keith Johnston, Society of Trust and Probate Lawyers

Professor Heather Joshi, Institute of Education, University of London

Professor Kathleen Kiernan, University of York

Dr Dorothy Kovacs, barrister, Melbourne, Australia

Professor Charlie Lewis, University of Lancaster

Jane Lewis, National Centre for Social Research

Sarah Lloyd, solicitor

Karen Mackay, Resolution

Mavis Maclean, University of Oxford

Caroline McNell, solicitor

Hayley Manson, Scottish Law Commission

Roma Menlowe, Scottish Executive

Chelly Milliken, Law Society of England and Wales

John Mortimer, Society of Pension Consultants

David Nichols, Scottish Law Commission

Professor Kenneth Norrie, University of Strathclyde

Peter O'Brien, policy adviser, Law Society of Northern Ireland

Catherine-Ellen O'Keeffe, Irish Law Reform Commission

Joan O'Mahoney, solicitor, Republic of Ireland

Professor Jan Pahl, University of Kent

Professor Patrick Parkinson, University of Sydney, Australia

Julia Pearce, University of Bristol

Professor Nicola Peart, University of Otago, New Zealand

James Pirrie, solicitor

Pascoe Pleasence, Legal Services Commission and Faculty of Laws, University College London

Richard Princeton, solicitor

Sonia Purser, Law Society of England and Wales

Dominic Raeside, mediator

Patricia Rickard Clarke, Irish Law Reform Commission

Gill Rivers, solicitor

Rachel Rogers, Law Society of England and Wales

Anna Rowland, Law Society of England and Wales

Professor Robert Rowthorn, University of Cambridge

Professor Eva Ryrstedt, University of Lund, Sweden

Caroline Schwartz, Legal Services Commission

Janys Scott, Faculty of Advocates, Edinburgh

Moira Shearer, Law Society of Scotland

Ellen Sharp, Age Concern England

Chris Shaw, Government Actuary's Department

Ruth Smallacombe, mediator

Professor Carol Smart, University of Manchester

Edward Solomons, Deputy Official Solicitor

Rogan Spears, solicitor, New Zealand

Nerissa Steel, Legal Services Commission

Joe Thomson, Scottish Law Commission

Andrew Turek, Treasury Solicitors Office, Queen's Proctor Division

Cheryl Turner, Relate

Dr Carolyn Vogler, City University

Alan Wardle, Stonewall

Fran Wasoff, University of Edinburgh

Dr Mary Welstead, University of Buckingham

Professor Nick Wikeley, University of Southampton

Bradley Williams, solicitor

Cathy Williams, University of Sheffield

Deborah Wilson, pension fund administrator

Moira Wilson, Scottish Executive

Morag Wise QC, Faculty of Advocates, Edinburgh

Sharon Witherspoon, Nuffield Foundation

Hilary Woodward, University of Bristol

Jon Woolf, Law Society of England and Wales

Kellie Wright, Tasmanian Registry of Births, Deaths and Marriages, Australia

Members of the judiciary of England and Wales and New Zealand

Members of staff of the Department for Constitutional Affairs, particularly those from HM Courts Service, Civil and Family Justice Division, Economics and Statistics Division and the Legal Aid Strategy Division

Clerics and advisers of the Catholic Bishops' Conference of England and Wales

Clerics and advisers of the Churches Main Committee, the Church of England

Organisations and groups

Advicenow

Age Concern England

Association of Contentious Trust and Probate Specialists

Association of District Judges

Buddhist Society

Court of the Chief Rabbi

Family Law Bar Association

Family Law in Partnership

Irish Law Reform Commission

Law Reform Commission of New South Wales

Law Society of England and Wales

Law Society of Northern Ireland

Law Society of Scotland

Law Society of the Republic of Ireland

Legal Services Commission

Legal Studies Research Team, Scottish Executive

Manchester Beth Din

Northern Irish Law Reform Advisory Committee

Nuffield Foundation

Office for National Statistics

Official Solicitor and Public Trustee

One Plus One

Performance Directorate, HM Courts Service

Relate

Resolution

Scottish Executive Legal Policy and Research

Scottish Law Commission

Society of Legal Scholars

Society of Pension Consultants

Society of Trusts and Estates Practitioners

Stonewall

Treasury Solicitors Office, Bona Vacantia Division

Treasury Solicitors Office, Queen's Proctor's Division