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.