Gender Imbalances, Economic Vulnerability and Cohabitation: Evaluating the Gendered Impact of Section 28 of the Family Law (Scotland) Act 2006

Abstract

Section 28 of the Family Law (Scotland) Act 2006 provides a system of financial provision for cohabitants upon separation that centres on redressing economic imbalances to ensure no-one is dramatically better or worse off financially than the other as a result of the relationship. Designed to be similar yet different to the marital regime, this section fundamentally sought to balance the need to protect the financially vulnerable against the need to respect the privacy of those who have chosen not to marry. Yet how far has s 28's balancing act protected the economically vulnerable in practice? Moreover, given that research has consistently demonstrated that it is women who are most frequently left in an economically vulnerable position upon separation, has s 28 reduced the gendered imbalances that can manifest themselves upon separation? To answer these questions, this article explores the gendered impact of s 28 and considers how effectively this section has operated in practice.

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“…For the case where the law required reciprocity, the Code provided for a general presumption of reciprocity. 26 The PIL Act left these rules in the Code; it does not contain special provisions on reciprocity regarding the applicable law. 27 It means that reciprocity is not a condition for the application of the foreign law, so the lack of reciprocity cannot result in the non-application of a foreign law.…”

“…More wanted to achieve this goal by an army of veterans and by regular or even constant warfare which was the opposite to the early modern wars waged by mercenaries. 26 Rome, even having the most capable soldiers, had to nominate by necessity a military dictator though, 'thereby giving this honourable testimony of monarchy, that the last refuge in perils of states is to fly to regal authority'. 27 The lack of the dictator would tinge the picture; although the army of the republic defeated the aggressors, Filmer nonetheless attributed this success only to a superhuman miracle 28 and not to the form of government.…”

“…According to the law, professional loyalty, devotion to professional values, collaboration with executives and co-workers and carrying out tasks with discipline, professional dedication and in a perceptive way are all norms. 26 If this regulation is reversed is it considered as erosion of confidence when a government official ends up having a professional difference of opinion with his or her superior? Lack of collaboration with fellow workers is not an erosion of confidence but inability to fit in at the workplace, and if the tasks are carried out without discipline or professional dedication and in an imperceptive way, the person is unfit for the job.…”

“…25 Act on Civil Service Officials pt IV ch III s 66 para 1. 26 Act on Civil Service Officials pt IV ch III s 76 para 2.…”

“…Based on all this, it was also questionable whether the requirement should be applied in cases of redundancy and, consequently, whether the interests of the employees shall be taken into account when selecting the employments to be terminated and, if yes, whether a dismissal violating this requirement could be unlawful. 26 Undoubtedly, during the preparatory work, the issue of strengthening the protection of employees arose -in particular in connection with group redundancies -and the idea of socalled socially justified dismissal by the employer (which could also be interpreted as a kind of equity requirement), according to which the employees affected should have been selected by taking their social circumstances into consideration as well (for example, length of service, age, support obligations and financial situation). 27 However, it seems like that the case-law analysis group of the Curia of Hungary put an end to the debate since, after roughly presenting its opinions, it held that although the wording of the Labour Code is unfortunate, the narrower interpretation shall prevail among the possible interpretations.…”