Section 21 — Financial provision where cohabitation ends otherwise than by death

Family Law (Scotland) Bill: Stage 3 – in the Scottish Parliament at 4:30 pm on 15th December 2005.

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Photo of Murray Tosh Murray Tosh Conservative 4:30 pm, 15th December 2005

Group 15 is on the matters that a court may take into consideration in making financial provision when a cohabitation ends. Amendment 22, in the name of Fergus Ewing, is grouped with amendments 46, 23 and 24.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

The intention behind the setting up of the provision for financial claims of former cohabitants is set out in the Executive's explanatory notes to the bill, which state:

"On the break up of a ... cohabiting relationship, one party may find themselves in a position of financial vulnerability".

Like other members, I was struck by the eloquence and passion of Susan Deacon's speech in the debate on group 14, but we need to go to the nub of the issue. What does the Executive claim will be achieved if the current words on the page remain in the bill when it becomes law?

In the stage 1 debate, the Deputy Minister for Justice said:

"We need to introduce greater certainty, fairness and clarity to the law, and to protect the legally vulnerable when a relationship ends."—[Official Report, 15 September 2005; c 19116.]

The aim of the bill is to protect the legally vulnerable. However, paragraph 193 of the Justice 1 Committee's stage 1 report points out that the committee, after doing its job thoroughly, could find no reference in the bill to financial vulnerability. The bill does not do what it says on the tin—it does not contain any provision to the effect that vulnerability is to be the justification for a financial claim.

Instead, the bill makes it clear that equity is to be the justification for a financial claim. Indeed, sections 19 and 20 provide the only two classes of rights that cohabitees will have, which relate to household goods such as furniture and furnishings and money or property that is derived through a housekeeping allowance.

It is important—especially in the light of what Susan Deacon said a moment ago—to clarify what protection will not be afforded to cohabitants. That was covered by Hugh Henry at stage 2. A vulnerable woman who splits from her partner after 10 or 20 years, with children, will have no claim whatever against the matrimonial home if it is in her partner's name. Under the provisions of the bill, she will have no claim whatever to the pension of her male partner, if he has a valuable pension right; she will have no claim whatever to any car, caravan or other vehicle; and she will have no claim whatever to any securities—any stocks or shares. She will also, perhaps, have no claim to her male partner's domestic pet.

Members may argue—as Susan Deacon did with great passion, and I agreed with her sentiments—that we are providing protection for vulnerable women; however, we are not. We are doing the exact opposite. The minister admitted to the committee that there will be no protection for the female partner and that she will have no claim against a house in the male's name; no claim against the male's pension; no claim against stocks and shares; and no claim against money except in very limited circumstances. How much would a claim for the average household furniture be worth? Second-hand furniture is worth little—we are talking about a sale value of a few hundred pounds.

I agree with the sentiments that Susan Deacon expressed and I admire the aplomb with which she expressed them. I agree also with the sentiments that Pauline McNeill, Mary Mulligan and others expressed at stage 2. However, the bill will not protect the vulnerable. It will not safeguard the children and it will not do what it says on the tin. There is no reference to vulnerability: the word "vulnerable" does not appear anywhere in the bill.

My amendments do not address those fundamental criticisms. I am afraid that, if members agree that the bill will take away rather than confer protection, their only option is to vote against the bill. That is what I will do later, with sadness. My amendments are intended to make it clear that it is the vulnerable partner and the children who should be protected to the limited extent that they can be protected under the bill. Ironically, if the bill is passed it will allow a wealthy member of a formerly cohabiting couple to make a claim. It will give each partner rights; therefore, the wealthy male with the job, the house, the pension and the car will also have a claim to half the furniture and the household goods.

Photo of Pauline McNeill Pauline McNeill Labour

I hear all that the member is saying and do not disagree with his analysis. Is he suggesting that we should extend the rights for cohabitants in the bill?

Photo of Fergus Ewing Fergus Ewing Scottish National Party

No, I am not. However, the committee said that a claim could be made by a wealthy person—that was the committee's conclusion. I mention that because it may not be obvious to members who were not able to attend all the committee meetings.

I move amendment 22.

Photo of Pauline McNeill Pauline McNeill Labour 4:45 pm, 15th December 2005

I may not agree with Fergus Ewing on anything else, but I agree that we must provide clear law for the courts. We are discussing the most significant provisions in the bill, because they are new law that sheriffs have not dealt with before. That is why I have lodged some probing amendments. We are giving wide discretion to sheriffs, so we must be clear about how we want to guide them.

At first sight, the provisions are not that easy to understand. We discussed section 18, which determines whether someone is in a cohabiting relationship. Every case will be different and any determination will depend on the circumstances, the nature and extent of the financial arrangements and the length of the relationship. The length of the relationship should not define a de facto cohabitation; rather, it should be the combination of all those circumstances. That is what section 18 tries to achieve.

I want to clarify how the provisions should be used. Fergus Ewing was not quite right to suggest that the interests of children would necessarily be affected if they were born of cohabiting relationships. I am in favour of ensuring that when it comes to children's rights, it does not matter whether the parents are married or cohabiting. However, there will be differences, which we need to balance, between the rights of cohabitants, married couples and civil partners. The Executive is right to identify hard cases in which one partner has simply walked away from a relationship after a long period and the courts are unable to grant the remaining partner any kind of award, and to balance that against the rights of the partner who does not want to make a lifelong commitment to the relationship.

The financial provisions for when cohabitation ends otherwise than by death are contained in section 21(3), which refers to the economic advantage derived by the defender

"from contributions made by the applicant", and to economic disadvantage suffered by the applicant in the interests of the defender or any children.

How will the provisions be used once the sheriff, using their discretion, has made the decision that someone is a cohabitant? It is clear to me now that the provisions are meant to be used by the sheriff to establish the economic advantage or disadvantage to the person who applies for a discretionary payment.

To that extent, the provisions will protect vulnerable people. I am now satisfied that we are not dividing wealth, that the sheriff is expected to find out the exact circumstances of a case and, if a child is involved, to ask the partners, "Did you stay at home and look after that child? Did you give up your career?" Sheriffs will be asked to look at those issues in arriving at their decision.

At the end of the day, I want to make clear the nature and extent of any financial arrangements that exist between the parties. That is the crucial element. If we are to make those new provisions, they must be clear. I will not move amendment 46, but I want an answer to my questions so that we can be clear about how sheriffs are expected to deliberate on the provisions.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I am diametrically opposed to my colleague Fergus Ewing on this matter—I much prefer the substantive law. Pauline McNeill's point that we are in uncharted waters is clearly the case and matters will have to develop.

As the minister correctly touched on earlier, we must recognise the new world in which we find ourselves in this 21st century. People choose not to marry and that is a matter for them—some people disagree with that and others do not. It would be fundamentally wrong if money and access to legal rights that we think are important were available only on the basis of hardship—an agreement and obligations have been entered into and that would therefore be inappropriate.

We are talking about creating rights. That takes us back to the corollary that with rights come responsibility and obligations, not simply when one party faces hardship, but when both parties have signed up to and entered into a relationship. If that relationship breaks down, the outcome should not simply be that someone should face economic hardship—they have broken the relationship that they made. They might not have taken marriage vows before a minister or a priest, but they entered into that arrangement so its breakdown must be dealt with.

I disagree fundamentally that some funding should be required to protect a child's welfare. At the end of the day, the child was born of a relationship and whether or not it was born in wedlock, the parents have a responsibility. Simply to say that payment will be made only if there is some question of vulnerability or hardship on the part of either parent is entirely unacceptable.

That applies especially to males, who must take responsibility for the child they have fathered. Whether or not the mother has a well-paid job, we expect the father to contribute financially to the child because it is their responsibility to do so—that touches on the points that were made about contact. Fathers have fatherly obligations that are not simply monetary and that is why we should leave the provisions as they are in the bill.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I support the current provisions in the bill, which go some way towards ensuring that a just and equitable settlement, which recognises what they have put into their relationship, is available for cohabitants either on the break-up of that relationship or the death of their partner.

Photo of Cathy Jamieson Cathy Jamieson Labour

As I have indicated, in trying to establish the provisions for cohabitants whose relationship breaks down other than by death, the Executive has been at pains to ensure two things: first, that any financial award that the courts make to an applicant addresses the net economic disadvantage that that person may face as a direct result of joint decisions that were made by the couple during the relationship; and secondly, that the economic burden of caring for a child that cohabitants have had together is shared until the child is 16. Those points were picked up by Pauline McNeill and Kenny MacAskill.

I want to speak about Pauline McNeill's amendment, in particular, because I understand that in amendment 46 she was seeking to put matters beyond doubt. We looked at the amendment very carefully and have reached the conclusion that it could restrict the discretion of the court, such that a capital sum could be awarded only in respect of the two matters that are specified in section 21(2). Although those are important matters that we would want the court to take into account, we also want the court to be able to consider any and all relevant factors when deciding whether to make an award under section 21(2)(a), particularly the tests of economic advantage and disadvantage that are outlined in section 21(3)(a) and (b).

I will comment briefly on Fergus Ewing's amendments. In my view, the member has misunderstood what the package is intended to achieve. It is not about protecting one partner who is or has been economically weaker than the other. It is not about seeking to replicate the financial arrangements that apply to spouses or civil partners. I accept that some members may wish that to be the case, but the bill does not do that. Cohabitants are under no legal obligation to aliment each other during their relationship, so there is no reason that we should seek to ensure that they do so when the relationship is over. However, it is important to achieve fairness. That is why we have adopted the provisions that are set out in section 21. Those provisions will ensure that one partner compensates the other for any net economic disadvantage that has resulted from the relationship that they formed together and that they will share the cost of caring for their children. We believe that that offers fairness to both parties, while respecting their rights to live as they choose without the Government imposing other financial obligations.

I urge the Parliament to reject amendments 22, 46, 23 and 24.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

I understand fully the minister's position; I have understood it all along. The debate has been useful because it has allowed some clarification of just how minimal the so-called protection that will be afforded to vulnerable females, in particular, will be. I did not state that there could be a payment only when there was hardship. Amendment 23 states that there could be a payment in two circumstances: when there was hardship or where there were children. The Child Support Act 1991 provides an obligation for aliment that will continue irrespective of the provisions of the bill—and rightly so. Those who argued that amendment 23 would somehow affect that are entirely wrong and confused about the amendment.

If there is confusion in the chamber about what the bill will do and what protection it will provide, how can we expect people in the country to be aware that, when they are told that they will get legal protection—the minister has repeatedly used the word "safeguard"—that protection will probably relate to a few sticks of furniture and a small amount of cash, rather than the full rights that are afforded to man and wife through the institution of marriage, which, if I were a feminist, I would certainly support? In Scotland, marriage fully protects the vulnerable female, whereas the provisions that we are debating would cause great uncertainty and confusion. If any of us went to any street in Scotland and asked people whether they were aware that we are doing this, I suspect that fewer than one in 100 of them would have the slightest idea.

I seek leave to withdraw amendment 22.

Amendment 22, by agreement, withdrawn.

[Amendment 46 not moved.]

Photo of Murray Tosh Murray Tosh Conservative

Group 16 concerns the financial provision for an artificially conceived child where cohabitation ends. Amendment 3, in the name of Marlyn Glen, is the only amendment in the group.

Photo of Marlyn Glen Marlyn Glen Labour

Amendment 3 relates to section 21(2)(b), which deals with financial provisions, separation of cohabitants, and the future economic burden of caring for a child of cohabitants. The current policy is that the financial provision should be limited to children whom the cohabitants have had together, rather than to a child of one partner and a third party. However, the bill does not deal with female cohabiting couples who have a child together. It is not unusual for female couples to have a child via artificial insemination by donor. That may be done through a licensed clinic or through private arrangements with a donor. If it is done through a licensed clinic, the partner who bears the child will be its legal mother, and the child will have no legal father. If it is done privately, that donor will be the legal father.

However, in both cases the two female partners have decided together to take on the responsibility of having and caring for a child. They decided that in the same way as a man and woman who cohabit and have a child. Where women are civil partners, section 9(1)(c) of the Family Law (Scotland) Act 1985 allows the court to make financial provision for the cost of caring for such a child after the dissolution of that partnership. However, without amendment 3, if women cohabit and are not civil partners, their responsibilities for the child are not recognised and their child is not protected. I do not seek to change their legal status, regardless of whether the second partner is a parent, nor do I want to change legislation that should be more properly considered in the UK Parliament. I want to ensure that children in Scotland are protected.

Amendment 3 is drafted to ensure that it covers only cases in which both women cohabitants jointly took the decision to have the child. That is the same-sex equivalent of a mixed-sex cohabiting couple deciding to have a child. In short, this is one of those situations in which ensuring equal treatment of the families of mixed-sex and same-sex couples requires a specific provision in the bill, rather than simply using the gender-neutral term "cohabitant".

I move amendment 3.

Photo of Murray Tosh Murray Tosh Conservative

Under rule 9.8.4A, I propose to extend the next deadline as set out in the timetabling motion. The debate on group 16 must therefore conclude by 17.08. I ask members to make only very brief speeches.

Photo of Mike Pringle Mike Pringle Liberal Democrat

I agree with everything that Marlyn Glen said. I supported her amendment at stage 2, and I continue to do so. That is because the bill is about one thing: better facilities and opportunities for children. The bill is about children and giving them better rights. As Kenny MacAskill has said many times, the bill is also about people taking responsibility for their lives in a changing society. Today's society is entirely different, and Marlyn Glen described many of those differences.

Amendment 3 addresses a specific issue and a particular type of couple, that is, a lesbian couple. We have to acknowledge that many couples live in that type of relationship in our modern society. I do not believe that the bill protects the person who bears the child and who will often rear the child while the other partner earns the salary and gets the pension. If that person then disappears, the woman who has had the child is left in a vulnerable position. I do not think that that is right and I ask the minister to give us undertakings about it. Many things will remain to be addressed after the bill has been passed—I do not doubt that it will be passed—and this is one of the issues to which we will have to return to get some sort of resolution. If amendment 3 is not agreed to, we must try to press our colleagues in London to change the Human Fertilisation and Embryology Act 1990.

Nobody has said anything to me that suggests that we could not include in the bill the provision that is proposed in amendment 3.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party 5:00 pm, 15th December 2005

At the risk of stating the obvious, maternity is a matter of fact and paternity is a matter of evidence. In this case, that is the difficult issue. How are we to know that the non-child-bearing partner agreed to the conception?

I would be astonished if any couple—two ladies—out there who were proceeding along these lines thought that rights would result from that kind of act. A deliberate act to create a child should be accompanied by a deliberate act to protect its future. Even amendment 3 would not do enough; it would do much less than would a deliberate act to protect a child's future. The provision that is proposed in the amendment is unlikely to be able to be implemented meaningfully.

Photo of Cathy Jamieson Cathy Jamieson Labour

This matter has to be set in the context of what we discussed earlier in relation to section 21, which provides for two related but distinct awards—the award to cover the net economic disadvantage that resulted from the breakdown of a relationship and the future child care costs. That is, of course, separate from children's alimentary needs, which are addressed fully and adequately by the Family Law (Scotland) Act 1985 and the Child Support Act 1991.

In the case of future child care costs, the Executive is applying the principle that cohabitants who have a child together should remain jointly responsible for meeting expenses that are incurred by the adult who cares for the child after separation. That includes cohabitants who have a child as a result of treatment licensed under the Human Fertilisation and Embryology Act 1990.

We are setting out not to introduce additional alimentary provisions for children, but to reflect the principle defined in section 9(1)(c) of the 1985 act that any economic burden of caring after divorce for a child of the marriage under 16 years should be shared fairly by the parties. The intention has always been to limit that provision to children of whom the cohabitants are the parents. The reasons for that distinction have been well rehearsed in the policy memorandum and in a number of subsequent exchanges with the Justice 1 Committee.

We recognise that the provisions exclude certain circumstances, such as when children are conceived by artificial insemination by couples using a sperm donor from an unlicensed clinic. I heard the arguments that Marlyn Glen has made around amendment 3. However, it could well be argued that people who choose to have a child together in whatever circumstances owe a moral responsibility to one another and to the child. I certainly would not argue with that principle. However, amendment 3 seeks to impose an on-going legal responsibility on someone who has no legal relationship with either the parent or the child concerned, which we do not think is appropriate. If a couple use a sperm donor in an unlicensed arrangement, only the person who carries and gives birth to the child is legally a parent; the other member of the couple is not the child's parent as a matter of law.

The question of establishing a new legal relationship between adults and children is not for the bill. In the particular circumstances in question, we believe that the remedy lies in legislation on human fertilisation and embryology, which is a reserved matter and would therefore be considered by the Westminster Parliament. At present, the definition of a parent in such circumstances is defined under the act to which I referred.

The Department of Health at Westminster, which has recently ended a consultation on the 1991 act, is considering the status of same-sex couples with regard to children who are conceived by assisted means. Any change to the legal status of such couples will be dealt with in any change to the reserved legislation, as it should be. Such changes would apply in Scotland.

We believe that the time to make any changes such as those that have been proposed by Marlyn Glen would be if the status of a parent were to be redefined in the legislation on human fertilisation. It may well be that no amendment to Scots law would be necessary, depending on the terms of that legislation. However, we cannot necessarily say that at this stage.

Given the existing provisions, I reiterate that we do not believe that we should make such a change to the law at this time or in this bill. Therefore, I ask Marlyn Glen to withdraw her amendment.

Photo of Marlyn Glen Marlyn Glen Labour

I realise that the matter is complex, but I do not agree at all with the idea that United Kingdom legislation is needed to do what I propose. There is no intent in the amendment to change the legal status of parents. The amendment seeks to protect children by ensuring that, if a cohabiting couple split up, the on-going expenses of the child would be covered. I am disappointed that the Executive will not support the amendment, but I hope that I can get some assurances that the issue will be considered in an on-going way and that the situation will be sorted out. We are talking about children who are living among us and who need protection as much as anyone else does.

I seek leave to withdraw amendment 3.

Photo of Murray Tosh Murray Tosh Conservative

Marlyn Glen has sought leave to withdraw amendment 3. Is that agreed?



Photo of Murray Tosh Murray Tosh Conservative

The question is, therefore, that amendment 3 be agreed to. Are we agreed?



Division number 10

For: Baird, Shiona, Ballance, Chris, Ballard, Mark, Byrne, Ms Rosemary, Canavan, Dennis, Fabiani, Linda, Fox, Colin, Gibson, Rob, Grahame, Christine, Harvie, Patrick, Ingram, Mr Adam, Leckie, Carolyn, Lochhead, Richard, Maclean, Kate, Mather, Jim, Maxwell, Mr Stewart, Neil, Alex, Ruskell, Mr Mark, Scott, Eleanor, Sturgeon, Nicola, Turner, Dr Jean, White, Ms Sandra
Against: Adam, Brian, Aitken, Bill, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brocklebank, Mr Ted, Brown, Robert, Brownlee, Derek, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Ewing, Fergus, Ferguson, Patricia, Fergusson, Alex, Finnie, Ross, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Godman, Trish, Goldie, Miss Annabel, Gordon, Mr Charlie, Gorrie, Donald, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, MacDonald, Margo, Macintosh, Mr Kenneth, Macmillan, Maureen, Martin, Campbell, Martin, Paul, Marwick, Tricia, Matheson, Michael, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McGrigor, Mr Jamie, McLetchie, David, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Milne, Mrs Nanette, Mitchell, Margaret, Monteith, Mr Brian, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Scanlon, Mary, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Swinney, Mr John, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan
Abstentions: Glen, Marlyn, Pringle, Mike

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 22, Against 91, Abstentions 2.

Amendment 3 disagreed to.

[Amendments 23 and 24 not moved.]