From 'Bidie-in' to 'Cohabitant' in Scotland

The Perils of Legislative Compromise

Bibliographic Data

ID12583452
AuthorsElaine E Sutherland (University of Stirling, corresponding author)
Year2013
Volume27
Issue2
Pages143-175
Publication date2013-05-06
Peer ReviewedYes
Open AccessNo
TypeARTICLE
VenueInternational Journal of Law Policy and the Family (JOURNAL)
Journal identifiersISSN: 1360-9939 • E-ISSN: 1464-3707
PublisherOxford University Press (OUP) (PUBLISHER)
DOI10.1093/lawfam/ebt006
OpenAlexW2032934630
LanguageEN
Citations received5
References cited18

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

Autonomy · Cohabitation · Common law · Compromise · Law and economics · Law reform · Legislation · Legislature · Political science · Sociology · Demographic Trends and Gender Preferences · Family Dynamics and Relationships · Multicultural Socio-Legal Studies · Law

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