From 'Bidie-in' to 'Cohabitant' in Scotland:The Perils of Legislative Compromise

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.