A Comparative Critical Analysis of the Financial Remedies for Cohabiting Couples upon Relationship Breakdown in Scotland and Germany

Abstract

In light of the Report on Cohabitation of the Scottish Law Commission from 2022, the article assesses which financial remedies are across jurisdictions most appropriate for cohabiting couples upon relationship breakdown and comparatively analyses the existing ones in both Scotland and Germany. The author argues that the best way to balance the protection of the more vulnerable party with private autonomy is by providing a default statutory regime, from which the partners are able to contract out subject to formal and substantial requirements. Even if the financial remedies have to be determined for each jurisdiction independently, two general principles apply, nevertheless; that is, they should not have stronger legal effects than those for marriage and should be compatible with the structure of each legal system. In relation to Scotland and Germany, the article advocates expanding the protection of the more vulnerable partner: German law should introduce maintenance obligations where one partner suffers economic disadvantages or financial hardships, even if they are not related to cohabitation. Scots law should reform its financial remedy not only to extend the available court orders and the considerations on which they are based but also to prolong the time limit to apply for it.