Why I disagree with Baroness Deech and her views on cohabitation

Cohabitation|Stowe Family Law|November 20th 2009

Today I appeared on BBC Radio 4 Woman’s Hour in a debate with Baroness Ruth Deech about the subject of cohabitation.

Two years ago the Law Commission (of which I was a member of the Legal Advisory Group) recommended that on cohabitation breakdown a scheme should be introduced which would compensate a cohabitant who could establish economic loss as a consequence of the relationship. It was purely compensatory, and not intended to give a claimant a divorce type settlement, because, as was stressed in the report, there was no intention to equate cohabitation with marriage. This form of compensation is already law in Scotland and the government is awaiting feedback from the Scottish scheme in order to decide whether to introduce similar provision for the rest of the country. Earlier this year, Lord Lester’s Cohabitation Bill, which proposed reforms to protect cohabitees and their children from falling into poverty, was debated in the House of Lords.

The story has hit the news again this week, as Baroness Deech has given a lecture describing Lord Lester’s proposals for a cohabitation law as “a windfall for lawyers but for no one else except the gold digger”. She believes that cohabitation law could invite blackmail and bullying from former partners and that it “retards the emancipation of women”.

These latest offensive and unfair comments are, of course, particularly close to my heart.

Baroness Deech is an academic, and is not – and never has been, to my knowledge – a practising family lawyer. Does she have the slightest working knowledge of the everyday misery and poverty caused by cohabitation breakdown to, in the main, women and their children, who currently have no remedy of any worth in law? As a practising family lawyer, this is something that I witness regularly.

She is of the generation that did not cohabit (as I did before my marriage) – her generation simply married. She discussed in her speech the concept of private immorality impacting on public morality. In my opinion she does not speak for the vast majority of people, who regard living with a partner as perfectly acceptable and yet whose cohabitation relationship is viewed in law as so derisory, it is unworthy of a composite legal framework, even though it also causes profound hardship to the very children she aspires to protect. In fact it is her perception of morality that appears to colour her entire approach and render her wholly out of step with millions of people in this country, who are cohabiting, in the 21st Century.

Of course many cohabitants go on to get married, but many do not and their relationship continues until ended by breakdown or death. There are legal remedies available to surviving cohabitants on death. However, that is not the same if a breakdown occurs while both parties are still alive.

I believe that Baroness Deech thus causes gratuitous, untold offence to mainly women who may unwittingly find themselves in that situation; she even perpetuates what I believe is overwhelmingly a myth of “profiteering gold diggers” seeking to benefit from a cohabitation breakdown – when nothing, in my experience, could be further from the truth.

There are literally thousands of women (if the number I see in my office is multiplied across the country) materially disadvantaged by a breakdown in their relationships (and which also impacts on their children) who, unlike Baroness Deech, do not have her powerful brain, nor her opportunities in life. They do not enjoy a life of luxury and privilege, whether they live with their partner or not.

These women are literally left homeless, without income, capital or pension. They may have lived with their partner for the last 30 years. They may have raised children who have grown up and moved away. Or the relationship may be shorter and the children may still be living at home. Their partner may have all the income and capital in the family locked up in his own name. And the woman discovers that she can be traded in for another, for far less than even the cost of a cheap second hand car. She can be traded in for nothing at all.

These women have no financial remedy to save them from the economic loss they sustained as a consequence of the cohabitation, and they and their innocent children are frequently left to fall back onto the State – the very thing Baroness Deech protests that she seeks to stop. Why should that be? Why should the other partner simply walk away with no obligation at all having had the entire financial benefit of the relationship for all the years beforehand? Why should her contribution as a homemaker count for nothing as a cohabitant – when exactly the same contribution counts as equality with the breadwinner on divorce?

The proposals currently with the Government based on a report by the Law Commission now some two years old, do not equate cohabitation with marriage. The proposals would only compensate a cohabitant who could demonstrate genuine economic loss as a result of the relationship breakdown. There would therefore be no ‘gold diggers’ charter. Instead there would be awards of compensation for loss, which as in Scotland, would bear no tangible resemblance to divorce settlements and would not therefore dilute marriage at all. In fact it would probably strengthen marriage if the remedies on cohabitation breakdown became law.

Some would even go as far as to argue there should be parity between cohabitation breakdown and divorce. I do not, because I do see a real difference between a legally binding agreement to marry and the lack of commitment in cohabitation, no matter the circumstances or what those reasons may be. Marriage must always be sacrosanct.

My concern remains however, for those people in need who suffer – genuinely suffer – along with their children and yet have no legal redress and plainly inadequate legislation to rely upon. It is an anathema that in Scotland cohabitation law exists, and yet in the rest of the UK it does not.

It is an anathema that we have such second class families at all in part of this country and that the Tories, once in government, would have us go exactly the same way.

Heaven help the 21st Century family everywhere in our country – except Scotland.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. John Bolch says:

    An excellent dismantling of Baroness Deech’s crude arguments!

  2. Carl Gardner says:

    But Baroness Deech specifically says she is not “putting out a moral message”, but a “message of freedom of choice and respect for rights”. I’m not a campaigner for old-fashioned values, and don’t agree with you that “marriage must always be sacrosanct”. I think cohabitation is just as ethical as marriage. But I’m sympathetic to Baroness Deech’s views.

    I’m sure you’re right that there are women who suffer terribly from relationship breakup, and have no rights. I agree that’s a problem. And there may be a solution to that that I could agree with. Maybe the Law Commission’s proposals do that, if they focus on proving loss. I’ll need to look at them in detail.

    But Lord Lester’s bill was wholly wrong. People choose to cohabit precisely because it involves no formal legal commitment; to force such commitments on them (unless they paid a solicitor in advance to draw up an agreement) after 18 months of living together (which Lord Lester’s bill did, if you analysed in closely) would discourage cohabitation. It wouldn’t be the modern, hip, relaxed thing you imply; in fact it’d be retrograde. For the sake of protecting the relatively few women you want to help, it’d force young people who want no ties and perhaps divorcees who want to avoid new ones into a 50s style choice between living apart and taking on responsibilities. It would act against the trend for cohabitation, not go with the grain of it. And it’d intensify yet further the trend towards single occupant households and the pressure on housing.

    So I think you’re quite wrong if you assume opposition to Lord Lester was “moralistic” – mine certainly wasn’t. I think people should be free to live together without formal legal engagements. Come up with a solution that respects that freedom, and I might support you.

  3. Graham says:

    Unfortunately then the Baroness is right, it is a bit of a gold diggers charter.

    I can see both sides of the argument as I have a daughter and I am a divorced Man. From my POV I was stitched up in court in my divorce settlement and for my daughter I worry that she will be left high and dry or traded in for a new model with nothing and a child or two and out on the street.

    The one ray of light in the future doesn’t involve lawyers in family law I’m afraid. CSA / CMEC should be abolished also and pre-nups should be binding. If you do that then you make men and women need each other, to earn enough and to bring up the children. The fallback is state benefits. Has to be the way forwards.

    Some lighter comments. Firstly, I have nero full version CD / DVD burner software and Nero Essentials (Lite) version on my PC. And I do prefer the Lite version. My point is that of course it is marriage lite and would further undermine marriage.

    Second lighter comment. Seems to me that this (co-habiting) situation has all come about with the sexual revolution and the invention of the Pill. Perhaps people should enjoy their new found freedom from reproductive responsibility issues and enjoy sleeping around rather than worrying about children, it’s not as if we have a population worry in this country with the number of eastern europeans getting pregnant in this country – let them worry about it. If women don’t want that then is the same position as thousands of years, and as it should be, namely that she needs the bloke to look after her and he needs her to look after the children, and i for one am doing this (co-habiting and having children), because I want it to remain my business and not be taxed or my woman and children to be taken away from me by a no fault divorce or devorce lite stitch-up.

  4. Graham says:

    Woman need to need men, if you give them the option and money to leave, they will – they think we smell! Then we pay via the government and taxes anyway. People are waking up to the fact that all Women aren’t Angels and can be devious and manipulating and this is not as simplistic an issue as you and John make out and is why what I think should happen will sooner or later probably happen, and what you think should happen (and the right or government and Resolution to govern my bedroom) probably won’t. Freedom.

  5. Paul says:

    Where there are children involved or where the woman is not in a position to earn income ( for example retirement age or close to ) then I agree compensation for economic loss does seem right if its a long term co-habitation relationship.

    But what about a short term – say a year or two long relationship where there are no children and the women does earn a wage? Should this women be supported for life? Receive a big compensation package? I don’t think so!

  6. Marilyn Stowe says:

    I agree with you. First her relationship would have to qualify under the scheme and even if it did, I doubt she would have a compensation claim.

  7. Robert Whiston says:

    What both irks me and makes me laugh is this faux equality bit. What is proposed is that women be compensated but not men / fathers in similar situations. This is a very Victorian view of women and ‘infantilies’ them yet again.
    Its a double standard repeated by our silly custody laws. Yes, men can be carers of children (in theory) but, No, we the court will give custody in 95% of instances to mothers and we the judiciary feel we can call that Equality too. What is not being told to the public is the chaos caused last time around by ‘irregular marriages’ – please comment on that comedy, Marilyn ! ! !

  8. 2010, here we come... | Marilyn Stowe Family Law and Divorce Blog says:

    […] of our cases included in the Law Reports. I also appeared on BBC Radio 4′s Woman’s Hour, debating against Baroness Deech on possible changes to the law on […]

  9. Lukey says:

    The only way forwards is to educate people from a young age about marriage, pre-nups (which should be binding) inheritance law and the need to clarify their legal position, this should start from school and I would be in favour of spending serious public money to get the message across. It is very very doable, but of course this would mean less money for lawyers Marilyn, however, I still think it is right 🙂

    Trying to force people to lose their assets without a marriage contract or indeed any contract at all really is shameful.

  10. Marilyn Stowe says:

    Thanks for taking time to read and comment. Much appreciated.

  11. An evening at All Souls College, Oxford – and why I agree with Baroness Deech about legal aid - Marilyn Stowe Blog says:

    […] could have hugged her! As regular readers may recall, I have disagreed with Lady Deech’s views in the past. However everything Lady Deech has to say about legal aid, and the efforts being made […]

  12. Howard Worsley says:

    No mention of fathers rights in cohabitation break down in regard to seeing their children, I could go into great detail, but as is usual it is all about mothers having absolute rights over everything. Maybe in the first place women who wish to be mother should restrain themselves before having children without adequate back up, like marriage?
    Maybe people should think if i get involved in a relationship with someone who doesn’t want to get married I need to seriously consider looking elsewhere.
    It’s always about righting wrongs after the responsible adult has made their choices and wants to change the outcome. How about fathers having a legal right to 50% contact with their children and not allowing mothers to have a child and 18 months later suddenly find out the man doesn’t suit and clear off a 100 miles away, it happens all the time.
    There are now three entities in every relationship, man/woman/state, and the state stands squarely behind the woman, in reality.

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