‘Gender and Justice’ symposium – a reflection

On the 6 and 7 May 2021, the ESRC project held a two-day symposium on the theme of gender and justice in Scotland in historical and legal perspective. Day one included three panels – a first on intimate lives, a second on employment opportunities, and a third on seeking justice – that explored women’s rights in Scotland from the medieval to modern period.

The first panel on women’s intimate lives brought together Caroline Derry and Fergus Smith to explore how women’s private lives were mediated before the courts during the nineteenth century. Derry discussed a prominent case heard before the Court of Session in 1810 – Woods and Pirie v Cumming Gordon – which detailed the experiences of two schoolmistresses (Misses Jane Pirie and Marianne Woods) whose school had been forced to close when the defender (Dame Helen Cumming Gordon) withdrew her granddaughter following suspicions of sexual impropriety. It was noted that Dame Gordon’s granddaughter Jane Cumming was, in fact, the illegitimate child of Dame Gordon’s eldest son, George, and his 15-year-old Indian “lover”, begotten while the young man was stationed in Patna in the service of the East Indian Company. Seeking thousands of pounds in damages, the two schoolmistresses claimed that their reputations had been irreparably destroyed as a result of the allegations, and in the end, the schoolmistresses won their case by a vote of four to three. Derry highlighted that while the judges of the Court of Session drew upon specific legal rules, authorities and techniques to assess the evidence, they also used and articulated their understandings of gender, class, ethnicity and empire within the records.

Smith then took us to the lives of poor women in the nineteenth-century sheriff courts to explore how gender intersected with ideas surrounding class and poverty. Smith gave an overview of his research into the tens of thousands of surviving civil jurisdiction records from the nineteenth-century sheriff courts, finding that women were highly visible as litigants across the period. For instance, of the 18,000+ cases sampled across five different sheriff courts, Smith discovered that at least 20% of all cases involved at least one woman, and that single mothers regularly secured legal aid when pursuing care provision from unwilling fathers.

A second panel on employment opportunities included papers by Alice Krzanich and Amber Rose Maggio. Krzanich explored the working lives of female domestic servants in the nineteenth century, arguing that while the hiring contract supported and reinforced patriarchal ideals within the household, it also provided a level of protection to women who were ultimately treated as contractual workers before the courts. She argued that female domestic servants regularly took their masters or mistresses to court when they felt wronged and that, in fact, the contract set significant limits on the employer’s authority. Whilst Krzanich explored women’s employment rights in the past, Maggio brought us forwards to women’s representation in the legal profession today. The majority of law graduates and solicitors in Scotland are female. Yet, Maggio argued that women still continue to be underrepresented in the legal profession in Scotland. She further contended that women’s participation in both the administration of justice and legal educational institutions are a prerequisite for access to justice in all areas of the law. For Maggio, the ‘leaky pipeline’ that sees women falling out of the legal system must address historical factors and current social developments in order to bridge the gap in women’s legal careers.

A third panel on seeking justice included papers by Sierra Dye and Laura Bell. Dye took us back to the late medieval/early modern period to explore how women defended themselves against accusations of witchcraft before the courts. Whether undermining the reliability of witness testimony or pursuing suits of defamation and slander as a way to remove and reverse the stigma of witchcraft accusations, women manoeuvred their way around the patriarchal legal system; not all fell victim to it. Bell then turned to look at how women interact with the legal system today when reporting Image-Based Sexual Abuse (IBSA) – what she argues should be understood as an act of violence against women. While the law is more robust in Scotland regarding this issue than in England or Wales, Bell argued that allegations of IBSA are still rarely prosecuted, with the law struggling to grapple with the high volume of reported cases in our increasingly digital world.

Day two included three panels – a first on children and reproductive rights, a second on cohabitation, and a third on judicial separation and divorce – and a roundtable. The panel on children and reproductive rights brought together Elly Nowell and Ruth Friskney. Nowell explored reproductive autonomy and the right to choose a caesarean, noting that medical paternalism intersects with misogyny to produce long-lasting sites of discrimination against women. She argued that women are rarely informed of the risks of pregnancy or childbirth, and that a vaginal delivery is viewed by medical practitioners as ‘morally preferable’ to a caesarean section. Reproductive autonomy is not only a gendered issue but also a racial one. For instance, while the UK’s maternal death rate is low, black women are four times more likely to die during pregnancy, childbirth and for up to six weeks after, than white women. Moving on to unpick the barriers to children’s participation rights, Friskney explored key problems with child contact and failures to protect women and children affected by domestic abuse in Scotland today. While the United Nations Conventions on the Rights of the Child established a range of participation rights for children (such as a child’s right to participate in major decisions about their lives through to broader political participation rights for children), Friskney argued that children are often ignored or overlooked in contact and residence cases, and that children’s participation rights are often subject to dispute. In her paper, Friskney called for the urgent need to improve the status of children not only in implementation but also in the making of family law.

A second panel on cohabitation included papers by Deborah Siddoway and myself. Siddoway explored how the two marriages of Captain John Campbell of Carrick – a member of the Scottish gentry – ultimately led to the enactment of the Clandestine Marriages Act of 1753 in England and Wales. Uncovering the convoluted history of Campbell’s marriage entanglements, Siddoway examined the evidence that was heard before the House of Lords; this included the letters that he wrote to both of the women who claimed to be his wife, and testimonies of the hardship that the decision inflicted on one of the women (including the bastardisation of her children, the loss of her husband’s pension and the disastrous injury to her reputation). I then turned to briefly chart the changing definition of cohabitation in Scots law throughout history. The Family Law (Scotland) Act of 2006 contends that a cohabiting couple are two persons living together ‘as if they were husband and wife’, a legal phrase that, in fact, can be traced back to the medieval period. I argued that further legislative reforms to the law of cohabitation in Scotland must take into consideration the risks in defining cohabitating relationships as comparable – yet unequal – to marriage, and must recognise the adverse effects on women’s rights within the long history of this struggle.

The final panel on judicial separation and divorce brought together Mairi Hamilton and Rosemary Elliot. Focusing on the records of cases of judicial separation on the grounds of cruelty during the nineteenth century, Hamilton explored women’s accounts of abusive behaviours before the commissary and sheriff courts. While the law was indeed a ‘patriarchal structure’, Hamilton also noted that women were not entirely powerless, with many appearing as agents in negotiation with legal authorities. Elliot then turned to explore women’s rights in relation to divorce in Scotland between 1955 and 1975, finding that the proportion of divorces initiated by women increased from just over half to three quarters, and the largest increase was in divorces brought on the grounds of cruelty. She argued that as divorce became more liberal, the state – through the courts – increasingly sought to regulate the types of arrangements which should be made by divorcing couples where children were involved. Elliot considered what implications these changes had for women seeking divorce, particularly those with children.

The whole symposium raised a number of interesting questions and conversations. Jane Mair then led a final roundtable discussion that sought to tie together the various themes and issues that were raised throughout the event. The importance of collecting data was highlighted by Mair, as legal practitioners are often faced with a lack of statistics when attempting to grapple with issues that affect women’s access to justice in modern day Scotland. A key point raised by Mair centred on the benefits reaped when historians and legal scholars work together when discussing women’s rights across time and place. What does thinking about women’s rights in the medieval period mean for our understanding of contemporary issues? And what does thinking about women’s rights today mean for our understanding of the past? In order to understand how the law functions today, we agreed that we must look to the past. Women throughout history have struggled to achieve and, on many occasions, gain access to justice; a matter that persists today. Legal practitioners and government officials, and so on, are grappling with the same or similar issues as their equivalents were in the past; from single mothers seeking care provision from unwilling fathers, to women reporting their violent partners for domestic violence and abuse. Women today also continue to face barriers in comparable ways to their historical sisters; from abandoned wives seeking legal aid to pursue recalcitrant husbands, to widows securing legal representation to settle their marital estates. While the tide is certainly shifting, there is still a long way to go.

The recognition that gender intersects with race, ethnicity, class and status was also raised in the roundtable. Women are often viewed as a homogenous group of people with shared interests, yet the papers raised important issues with regards to wider factors that influence women’s rights. It was also noted that the long history of women’s rights is a story of both continuity and change. As raised by Krzanich, women’s rights have not necessarily developed in a teleological fashion, from ‘bad to good’ over time, but the law – both past and present – is capable of being mutually supportive to and discriminatory against women. We often look to moments throughout history where women gained a significant financial or legal advantage, such as the Conjugal Rights (Scotland) Act of 1861 or the Married Women’s Property (Scotland) Act of 1882, without fully understanding how these pivotal moments transformed women’s access to justice in practice. In Scotland today, there is an underlying assumption that gender equality has been achieved – at least in a legal sense – without recognising the barriers that women continue to face on a daily basis. In 2021, women (especially single women and lone parents) are more likely to live in poverty than men and women on the whole continue to face the brunt of caring responsibilities, especially when a relationship breaks down. These stark inequalities have only been further highlighted over the past year due to the COVID-19 pandemic, the consequences of which will not be fully understood for years to come.

Rebecca Mason is the recipient of an Economic and Social History Postdoctoral Fellowship 2020/21 and a historian of early modern gender and law based at the University of Glasgow.

Cohabitation in Scotland: Lessons from history

*First published on the University of Glasgow School of Law Blog on 18 December 2020*

Picture: David Allan, The Black Stool (The Stool of Repentance), 1795. National Galleries of Scotland, Accession number: D 4373. Source: https://www.nationalgalleries.org/art-and-artists/8323/black-stool-stool-repentance. Here we can see a young mother weeping while cradling her new-born infant, while her own mother furiously glares at the alleged father of the child. The young bachelor is being publicly reprimanded by an elder of the kirk session, while his own parents hang their heads in shame beneath him.


Cohabitation in Scotland: Lessons from history

Cohabitation, in very broad terms, can be defined as an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. Throughout history, couples cohabited, rather than married, for a variety of reasons, often due to existing impediments to marriage or lack of resources to fund the costs of a wedding ceremony. Today, many couples in Scotland choose to cohabit to test their compatibility before they commit to marriage. For others, the decision to cohabit is a lifelong choice as the social capital of marriage has waned to a simple representation of commitment (Kok and Leinarte 2015: 508). With short-term and life-long cohabitation on the rise, nearly 18% of families in Scotland today are headed by a cohabiting couple (ONS 2020). As more and more people opt out of marriage in favour of cohabitation, how has the Scottish legal system grappled with the regulation of such private relationships? This essay shows that the legal regulation of cohabitation in Scotland is, in fact, a historical issue dating back to the reform of marriage law in the early modern period. It traces the long history of cohabitation in Scotland from the early modern period to the present day and investigates the changing effects of cohabitation on the property rights of women throughout history. In providing this crucial background, it situates ongoing debates surrounding the reform of cohabitation law in Scotland in historical perspective, and explains why this debate presents as a feminist issue.

Cohabitation and marriage: What’s the difference?

Cohabitation in Scotland has a very long history which is intimately tied to the history of marriage and the regulation of marriage. After the Scottish Reformation of 1560, issues relating to marriage fell under spiritual and secular jurisdictions. In early modern Scotland, parental consent was not strictly necessary to conduct a valid marriage. Marriage was made by the free consent of two marrying parties, provided they were of age (12 for a girl, 14 for a boy), not already married, and not within the prohibited degrees of kinship (blood relatives) or affinity (in-laws). Legal writers of the time – such as Sir Thomas Craig in his Jus feudale (c.1606) – tended to agree, however, that a father could reasonably disinherit his son if he married without seeking prior permission. While parental consent was not required, it was encouraged.  

At the apex of the hierarchy of marriages were those that were conducted in a ‘regular’ manner. A regular marriage – according to church, law and state – constituted a public proclamation or the reading of the banns (the promise to marry) on three consecutive Sundays in the parish church, followed shortly after with a ceremony presided by a minister in front of reputable (male) witnesses. Many young couples who followed this path to marriage also wrote an antenuptial marriage contract, which specified the property rights of both parties within the marriage and upon its eventual conclusion at the death of either spouse. Marriages conducted before the congregation and community offered immediate social status and legal rights to spouses, as well as any children born as a result of the union.

Yet, as consent alone was the main concern in Scots law in terms of establishing a binding marriage, other forms of marriage – known as ‘irregular’, ‘disorderly’ or ‘clandestine’ marriages – were considered valid. Irregular marriages were established by the act of giving present consent (marriage de presenti) or the promise of marriage followed by sexual intercourse (promise subsequente copula). Marriage by cohabitation with habit and repute was also, on many occasions, understood as a legitimate form of marriage, though subject to significant legal scrutiny. Where a man and woman lived together, treated each other as husband and wife, and were ‘repute and haldin’ by their neighbours and kingroup as a married couple, the law upheld their marriage and the legal benefits that it entailed (Barclay 2019: 174-176). For instance, a 1503 act concerning wives’ terces entitled women who were ‘repute and haldin’ by the community as lawful wives to claim the right of terce (a customary share of their husband’s land upon widowhood), till the contrary be proved. While it remains difficult to assess the frequency of cohabitation in Scotland in the past, historians Leah Leneman and Rosalind Mitchison estimated that during the eighteenth century in Troqueer in southwest Scotland, irregular marriages made up at least a third of all marriages in the parish (Leneman and Mitchison 1989: 79-103).

Marriage by cohabitation and repute was understood as a legitimate – albeit irregular – form of marriage in Scotland until 2006, when it was finally relegated to the history books. At the same time, the 2006 Family Law (Scotland) Act introduced new rights defining the legal position of a cohabitant when their cohabitating relationship ended following separation or death of either party. Section 25(1) of the Act defines a ‘cohabitant’ as either member of a couple consisting of a) a man and woman who are (or were) living together as if they were husband and wife; or b) two persons of the same sex who are (or were) living together as if they were civil partners. Although section 25 still includes elements (a) and (b), since the Marriage and Civill Partnership (Scotland) Act 2014, (b) is treated as having been deleted. In other words, both same sex and opposite sex cohabitation in Scotland is defined in relation to marriage. But what exactly does it mean to live as a married couple?

This narrow definition of ‘cohabitant’ has been criticised in recent years by family law experts and feminist academics (Mair and McCarthy 2016). The Scottish feminist policy organisation Engender recently criticised the definition of cohabitants in the Act as ‘outdated and increasingly open to conflict, given the evolving and increasingly individualised ways in which married couples define their relationship’ (Engender 2020). In the early modern period, women were expected to conform to strictly gendered behaviours surrounding their position and role within the family in order to acquire the legal and social status of ‘wife’. Antiquated notions of gender roles within relationships and families continue to affect the rights, status and progression of women in Scotland today. Even with women’s greater participation in the workforce, the division of paid and unpaid work carried out within the household remains highly gendered, with women making most of the unpaid domestic contributions and bearing the weight of caring responsibilities (Garland 2015: 311). The presumption that we collectively share a notion of what it means to live as ‘husband and wife’ in modern day Scotland can, in fact, be traced to conversations of what it meant to be married in the early modern period.

Regulating marriage and intimate relationships in the past

Unmarried cohabitation is often seen by many as a modern phenomenon, but in fact it has long historical precedents in Scotland. The regulation of marriage and intimate relationships has been identified as a central part of the Kirk’s remit following the Scottish Reformation of 1560. Much of the business of the kirk session, the lowest in the Presbyterian hierarchy of church courts, involved sanctioning those who failed to abide by church discipline. Illicit sexual intimacy between opposite sex couples – ranging from fornication (sex outside of marriage) to adultery (sex with another while married) – was subject to church discipline in the kirk sessions. Women and men who had sex outside of marriage – often discovered after a woman had given birth to a child outside of wedlock – were prosecuted as ‘fornicators’ by the kirk sessions, and were expected to pay a fine and perform public penance before the congregation. Women and men who committed adultery were also subject to church discipline, with repeat offenders ultimately excommunicated or even banished from the parish. Sex and procreation within a lawful marriage between a man and a woman was viewed – by the Kirk and by society in general – as the only legitimate site for intimate expression and reproduction.

As well as policing illicit sexual behaviour, kirk elders investigated and questioned couples whose claim to marriage was tenuous or, in many cases, did not cohere with church requirements. Irregular marriage did not conform to church and state regulations and was thus viewed as legally and morally controversial. A 1661 act against clandestine and unlawful marriages stated that couples who married in a clandestine way were to be imprisoned for three months and fined relative to their rank and status, ranging from 100 merks ‘for each person of inferior quality’ to £1,000 Scots for noblemen. Yet, despite being subject to state regulation and church discipline, a clandestine marriage was still legally valid. The kirk sessions faced the arduous task of distinguishing cases of sexual non-conformity (i.e. fornication or adultery) from cases of marital non-conformity (i.e. irregular marriage by promise or marriage by cohabitation), as the two could potentially overlap. Local authorities feared that irregular marriage could be (and indeed often was) an attempt to cover up fornication which had led to pregnancy outside of wedlock (Leneman and Mitchison 1993: 846; Barclay 2019: 165). In June 1577, Thomas Bishop confessed his ‘cohabitation and carnal deal’ with Violat Dog before Perth kirk session, and in doing so promised to pay 40 shillings Scots to the poor and complete the bond of matrimony with Violat within 15 days. Yet, according to the parish registers, Thomas and Violat had already married three months previous in March. The couple may have admitted to cohabiting prior to marriage before the kirk session as Violat was visibly pregnant much too soon after their official ceremony.

The fear that a married person might cohabit with a person other than their spouse was crucial to the regulation of marriage and intimate relationships. Those couples who cohabited while already married to another were treated severely by church and secular courts as they were committing the sin of adultery or, in some cases, bigamy. In St Andrews burgh (town) court in 1600, Elizabeth Fallins and George Ochiltrie were permanently banished from the city for their ‘wyld and abominable lyf in cohabiting togither’ for many years. The issue here was not that Elizabeth and George were simply living together as unmarried persons, however. The town bailies alleged that Elizabeth was ‘alreadie mareit to ane uther man’ and that she had not secured a divorce before Edinburgh’s commissary court, which held jurisdiction over matters relating to matrimony. The town bailies even publicly reprimanded and fined the man providing shelter to the cohabiting couple, perhaps as a warning to others who opened their households to suspect individuals. Those unmarried couples who quietly cohabited together without raising the attention of the kirk or their community remained largely unobserved by local authorities and are therefore largely absent from the historical record.

Living as ‘husband and wife’: Quantifying claims

A woman’s decision to either marry or cohabit with a live-in partner had – and still does to this day – very real implications for her access to property. The institution of marriage, while restricting women’s property rights and legal status within marriage during the early modern period, clearly provided women with significant advantages to be exploited at law. Antenuptial marriage contracts consistently note that the man was ‘takeand the burden upon him’ for his future wife. Husbands were also expected to provide their wives with clothing and aliment (care provision) relative to their rank and status and could find themselves before the law if they refused to adequately do so during marriage. Husbands were responsible for their wives’ debts, including those conducted by them as single women before marriage. Upon widowhood, women held concrete rights to their marital property, including one-third of their husbands’ moveable estate – which increased to one-half if no children were born of their marriage – as well as liferent rights to land (both terce and jointly-owned land). Divorce was permissible in Scotland on the grounds of adultery from 1560 and on the grounds of desertion from 1573. If a wife successfully divorced her husband on the grounds of adultery or desertion, she maintained legal right to all her conventional provisions as if he were dead and reclaimed ownership of all property gifted to her at and since the marriage. It seems that for a cohabiting woman to reap the legal benefits afforded to a wife in early modern Scotland, she ultimately had to prove that she was ‘repute and haldin’ by the community as married.

But how could an early modern woman prove before the law that she and her partner lived ‘as man and wife’, and that their cohabitation was an irregular form of marriage? Women in cohabiting relationships usually appeared before the courts when legal action was triggered as a result of their radically uncertain marital status, often following abandonment. In 1699 Mary Lyon alleged before the Court of Session – Scotland’s highest civil court – that her live-in partner James Gordon, a widower, had wrongfully seized her property and unceremoniously turned her away from their household. While she admitted to cohabiting with James for several months, caring for his children and sharing his bed, she alleged that James had promised marriage ‘by a writ under his hand’, and that after living ‘as man and wife’ James had wrongfully seized her property and turned her out of their home. As Mary had provided evidence that her partner James had promised marriage but later reneged on his promise, and that the community had ‘repute and haldin them as man and wife’, the Lords ordered James to pay Mary 200 merks yearly in aliment (care provision). Whilst they stated that James deserved to be punished for ‘abusing her so’, they added that ‘women who prostitute themselves are not to be encouraged nor rewarded’, explicitly admonishing those women who lived with a partner before legitimizing their marriage before the church and state. In a similar case brought before the Court of Session in 1710, Anna Cameron, while heavily pregnant, raised a summons of aliment against her partner John Innes for £50 Sterling after John abandoned her and their children. Anna asserted that while she was irregularly married to John ‘by an Episcopal minister, and without proclamation’, she could prove that they had cohabited ‘as man and wife’ for more than three years. Uneasy with Anna’s precarious marital status, however, the Lords instructed her to prove that her cohabiting relationship was an irregular marriage before the Commissaries in Edinburgh. Edinburgh’s commissary court held exclusive jurisdiction in cases of a strictly consistorial nature, such as marriage, divorce, separation and legitimacy. Women who claimed to be part of a cohabiting union were expected to prove before the commissaries that their conjugal union was an irregular form of marriage before the Court of Session could decide on whether or not they were due aliment. Amongst legal thinkers, the controversy arose over the issue of how to differentiate cohabitation, as a form of irregular marriage, from illicit sexual or intimate relationships, such as fornication or concubinage (Leneman 1999: 672). Repeated references in legal writings to women ‘ensnaring’ young men into situations where they might be found married, whilst the men thought they were simply engaging in a casual relationship, highlights the sexual double standard underlying women’s behaviour and choice of partner in the past. In the past, cohabitation only gave women specific rights to property when it was recognised as a form of marriage.

As well as affecting the rights and status of women, cohabitation also impacted on the property rights of any children born from the relationship. The children of cohabiting couples attempted to establish their legitimate family status before the law in a bid to secure inheritance rights in the past. In 1711, Lydia Forbes, the daughter of the recently deceased Captain Charles Forbes, initiated litigation before the Court of Session against her aunt – her father’s sister – Jean Forbes, alleging that, as the legitimate daughter and sole heir of her father Charles, she was entitled to assume control of his estate. Jean, on the other hand, asserted that her niece Lydia was, in fact, illegitimate and had no rights to her father’s estate. The issue at hand here centred on the legal status of her father’s and mother’s relationship. Lydia provided four male witnesses – her father’s landlord, a tailor, and two soldiers – to support her inheritance claim. The men told the court that they had seen Charles and Jean – Lydia’s father and mother – ‘converse together as man and wife’ for three or four years, and that they were ‘reputed by the neighbourhood as such.’ The men agreed that Charles had ‘owned the said Lydia for his daughter’ and that they had ‘never heard her called a bastard’. One of the men even asserted that Lydia’s mother would sit at the head of the table while nursing Lydia on her lap, and that they regularly heard Charles say that ‘he behoved to go to Jean to get a recruit of money’, which shows he allowed her the management of his purse. By citing evidence of her mother’s respected position within the household as a dexterous household mistress and caring mother, Lydia attempted to strengthen her legal claim to her father’s estate as his legitimate daughter.

In her response, however, Jean Forbes asserted that Lydia’s mother ‘was in the repute of a miss and whore to the Captain’ and that even after his death she did not put in a claim to terce or any share of his moveables ‘as a married woman certainly would have done.’ She also alleged that Charles had designated Lydia as his ‘natural daughter’ – i.e. illegitimate – in his will and testament, and produced a certificate to prove that Lydia’s mother was confined in the correctional house of Bridewell in London as a ‘bad woman.’ In her defence, Lydia asserted that her parents had cohabited as ‘man and wife’ and were ‘holden and reputed’ by the community as such – this alone, she argued, presumed a solemnisation of their marriage, without the necessity of further proof. While she admitted that her father Charles had disowned her mother later on in life, she asserted that ill-feeling could not dissolve the marriage bond, ‘for parties wearying of one another sets them not at liberty.’ Yet, as Jean submitted evidence that proved Charles had designated Lydia as illegitimate in his will and testament, the Lords decided to rule that the cohabitation, in this particular case, did not amount to a lawful marriage, and therefore granted full control to Jean Forbes as her brother’s next of kin. Lydia, as a result of her mother’s tenuous claim to marriage, was ultimately unsuccessful in securing rights to her father’s estate.

While it is impossible to attempt to recover empirical ‘truth’ from stylised legal records, it is worthy to focus on the manner of the descriptions contained within them and unpick the gendered behaviours that cohabiting women emphasised in their legal pleadings. Women who cohabited with live-in partners without completing a regular marriage before the Kirk stressed that they had adhered to behaviours that were traditionally performed by wives, including caring for children, sharing a marital bed, and managing the household economy. When the relationship irrevocably broke down, cohabiting women argued that their partners had withdrawn the promise of marriage, through no fault of their own. Proving that they were ‘repute and haldin’ by the community as irregularly married in order to receive some form of financial benefit before the law remained at the forefront of women’s legal pleadings.

Conclusion

In the past, women clearly struggled to gain some form of financial benefit following the breakdown of a relationship that was not legitimised before the church and state. Women today continue to struggle to secure property rights following the breakdown of a cohabiting union. When a couple decides to divorce in Scotland, the Family Law (Scotland) Act 1985 ensures that assets acquired during marriage are generally shared equally, and disadvantages and advantages can be accounted for, at least financially. If a cohabiting couple separate, the woman is left with much less certain financial protection than that afforded to divorcing spouses, despite the fact that the relationship is functionally identical to many marriages. Eilidh Dickson, Engender’s Policy and Parliamentary Manager, has recently asserted that ‘[w]hen opposite sex cohabitants separate, they face the same gendered realities as married couples – men leave largely with their earning potential intact, while women have experienced a motherhood penalty, gaps in work, and remain responsible – sometimes even more so – for the care of children’ (Dickson 2020). The law currently assumes that cohabiting couples have made a conscious decision to avoid the legal regulation of the state and therefore avoid financial obligations to one another. This can lead to significant injustices for women and children, particularly in cases where a mother has given up or reduced her work to raise a family.

The Scottish Law Commission recently reported on the lack of public awareness and possible misconceptions of the rights of cohabitants in Scotland and across the rest of Britain today (SLC 2020). There is considerable confusion amongst the Scottish public concerning the legal status of cohabitants, with a majority (57%) reporting the belief that cohabiting couples have a ‘common law marriage’ that gives them the same rights as married persons. Similarly, a significant number (35%) of those questioned inaccurately believed that a woman who had cohabited with her partner for more than ten years would have the same rights as a married woman in relation to property on the death of her partner. The persistent myth that a couple would become common-law married by virtue of performing certain behaviours rather than as the result of acquiring a status, and would then acquire the bundle of rights and duties of marriage, remains deeply ingrained in national consciousness (Chambers 2017: 150-151).

Women often only become aware of their limited rights within cohabiting partnerships when the relationship abruptly ends. For both opposite and same sex cohabitating couples to gain some form of financial provision following the breakdown of their relationship, they are required to prove that they had lived together in a relationship that resembles a marriage. Further legislative reforms to the law of cohabitation in Scotland must take into consideration the risks in defining cohabitating relationships as comparable, yet unequal, to marriage, and recognise the adverse effects on women’s rights within the long history of this struggle. Drastically amending the reference to living together as ‘husband and wife’ in Section 25 of the 2006 Family Law (Scotland) Act would represent a step away from privileging marriage as the default mode for adult life, and remove any confusion to the persistent myth of the existence of ‘common law marriage’ in modern day Scotland.

Works Cited

Barclay, Katie. ‘Marriage, Sex and the Church of Scotland: Exploring Non-Conformity Amongst the Lower Orders’, Journal of Religious History 43:2 (2019), 163-179.

Chambers, Clare. Against Marriage: An Egalitarian Defence of the Marriage-Free State (Oxford 2017).

Chen, Carry. ‘The Couple on No-one’s Lips: Allowing Perfect Imperfections in Scottish Cohabitations’, published 2013.
Source: https://www.abdn.ac.uk/law/documents/ASLR_Vol5_Carry_Chen_as_published.pdf

Dickson, Eilidh, ‘Knowing Me; Knowing You: Is this the best we can do for cohabiting couples?’ Engender Blog, published 24 September 2020. Source: https://www.engender.org.uk/news/blog/knowing-me-knowing-you-is-this-the-best-we-can-do-for-cohabiting-couples/ Accessed 1 December 2020.

Engender response to the Scottish Law Commission: Aspects of Family Law Discussion Paper on Cohabitation, August 2020. Source: https://www.engender.org.uk/content/publications/Engender-consulation-response-Scottish-Law-Commission-Aspects-of-Family-Law-Cohabitation.pdf Accessed 1 December 2020.

Garland, Fae. ‘Gender Imbalances, Economic Vulnerability and Cohabitation: Evaluating the Gendered Impact of Section 28 of the Family Law (Scotland) Act 2006’, The Edinburgh Law Review 19:3 (2015), 311-332.

Kok, Jan and Leinarte, Dalia. ‘Cohabitation in Europe: a revenge of history?’, History of the Family 20:4 (2015), 489-514.

Leneman, Leah. ‘Wives and Mistresses in Eighteenth-Century Scotland’, Women’s History Review, 8:4 (1999), 671-692.

Leneman, Leah and Mitchison, Rosalind. ‘Clandestine Marriage in the Scottish Cities, 1660-1780’, Journal of Social History, 26:4 (Summer 1993), 845-861.

Leneman, Leah and Mitchison, Rosalind. Sexuality and Social Control: Scotland 1660-1780 (Oxford 1989).

Mair, Jane and McCarthy, Frankie. ‘Justice Committee, Family Law (Scotland) Act 2006: Written submission from Professor Jane Mair and Dr Frankie McCarthy, University of Glasgow’, 9 February 2016. Accessed 22 November 2020.
Source: https://www.parliament.scot/S4_JusticeCommittee/Inquiries/FL9._Mair_and_McCarthy.pdf.

Scottish Law Commission, ‘Aspects of Family Law: Discussion Paper on Cohabitation’, Discussion paper no. 170. February 2020.
Source:https://www.scotlawcom.gov.uk/files/1115/8270/8061/Aspects_of_Family_Law_-_Discussion_Paper_on_Cohabitation_DP_No_170.pdf Accessed 23 November 2020.

The Scottish Feminist Judgments Project (SFJP) led by Sharon Cowan (University of Edinburgh), Chloë Kennedy (University of Edinburgh) and Vanessa Munro (University of Warwick). See Coyle vs Coyle 2004. Source: https://www.sfjp.law.ed.ac.uk/ Accessed 1 December 2020.