|Appears in Collections:||Law and Philosophy Journal Articles|
|Peer Review Status:||Refereed|
|Title:||From 'Bidie-in' to 'Cohabitant' in Scotland:The Perils of Legislative Compromise|
|Authors:||Sutherland, Elaine E|
|Citation:||Sutherland EE (2013) From 'Bidie-in' to 'Cohabitant' in Scotland:The Perils of Legislative Compromise, International Journal of Law, Policy and the Family, 27 (2), pp. 143-175.|
|Abstract:||For the most part, 'first world' legal systems have long since abandoned the criminalization of non-marital cohabitation and no longer refuse to recognize cohabitation contracts on public policy grounds. Beyond that, however, there is considerable division over whether to attach marriage-like consequences to cohabitation. Much of the debate juxtaposes respect for party autonomy and protection, with advocates for greater protection focusing on the functional similarity of cohabitation and marriage and widespread misconceptions about the legal consequences of cohabiting. The Scottish Law Commission embraced compromise in its recommendations for reform of the law on cohabitation and sought to balance protection of the vulnerable and respect for autonomy. While the legislation that resulted departed somewhat from these recommendations and suffered from defective drafting, it too took a compromise position. Using the lens of these legislative provisions, this article argues that such an approach leads to a loss of coherence in the law, judicial divergence, public confusion and creates a false sense of security among the ill-informed. In addition, it invites incremental expansion of the law without a firm policy decision being taken. The article concludes that a better course would be to take that policy decision and to put cohabitants on an equal footing with those in formal relationships, while respecting autonomy by allowing the parties to opt out of the new regime.|
|Rights:||The publisher does not allow this work to be made publicly available in this Repository. Please use the Request a Copy feature at the foot of the Repository record to request a copy directly from the author. You can only request a copy if you wish to use this work for your own research or private study.|
|Sutherland_IntlJLawPolicyFamily_2013.pdf||226.41 kB||Adobe PDF||Under Embargo until 31/12/2999 Request a copy|
Note: If any of the files in this item are currently embargoed, you can request a copy directly from the author by clicking the padlock icon above. However, this facility is dependent on the depositor still being contactable at their original email address.
This item is protected by original copyright
Items in the Repository are protected by copyright, with all rights reserved, unless otherwise indicated.
If you believe that any material held in STORRE infringes copyright, please contact firstname.lastname@example.org providing details and we will remove the Work from public display in STORRE and investigate your claim.