Baroness Deech
Main Page: Baroness Deech (Crossbench - Life peer)Cohabitation Rights Bill [HL]
Baroness Deech Excerpts
Baroness Deech (CB)
My Lords, a few months ago the Prime Minister announced that all government policies would be subject to a new family test: what impact would they have on relationship formation and breakdown? It is against those standards that I seek to assess the Bill. My conclusion is that it would reduce willingness to commit long-term and would greatly increase the stress of couple breakdown, significantly to the detriment of children.
Few of us today would argue against affording respect to all family forms. But this Bill, albeit with the best of intentions, puts a widespread choice of lifestyle—cohabitation—into lockdown. If it were to be enacted, which I sincerely hope will not come about, the outcome would be that married couples, civil partners and same-sex couples would have the free choice of union, from which they may refrain or enter, but cohabiting couples, both future and past—for the Bill has some retrospective elements, which are particularly contentious—will find that they are snared unaware in a trap of laws from which there is no escape, save for the opting-out provisions of the Bill. Almost the entire panoply of marriage law is to be lowered on to them by the Bill once they have spent two years cohabiting—two years is the average length of a cohabitation—or if they are parents of a child. People often use the phrase “bedroom tax” but, if enacted, this Bill would be the real bedroom tax: share your bedroom and you will be taxed for ever more.
Since cohabitation is so common, we are told that it must give rise to marriage-like consequences for the protection of women, although quite what that “protection” amounts to is an issue for analysis. But if the Bill is enacted, cohabitation will become as expensive and legalistic as divorce, no more attractive than marriage but bound to deter even more men from the stability that their children so badly need. It is true that some other countries have enacted recognition of cohabitation in terms of marriage law. American states, however, are rowing back from legal regimes for cohabitants. But those other countries listed by the noble Lord, Lord Marks, have already reformed their law on financial provision at the end of marriage to be less generous, less discretionary and more likely to be based on a fixed half share of matrimonial property, and they recognise nuptial agreements. It makes more sense, if any, to apply the law to cohabiting couples when it is reformed and certain, if that is what is going to happen, rather than when it remains as discretionary as ours. This Bill mimics existing matrimonial law in that it preserves too much judicial discretion with no rational principles except paternalism. That is why mediation may well not work. There will be a risk of blackmail behind the scenes because, without firm judicial principles for the assessment of property transfers, one of the couple will hassle the other for a settlement. Judges do not see this; they see only the cases that come to them, the tip of the iceberg.
Is this reform in the interests of children, children who we know, from studies of cohabitation, will do worse at school and only one-third of whom can expect to be living with both unmarried parents by the time they are 16? The damage to those children arises from their social situation, not the law. Cohabiting couples with children are more likely to break up than childless cohabitants or married couples, and they are less likely to conclude their cohabitation in marriage. Schedule 1 to the Children Act 1989 already provides for orders for the support of a parent, usually the mother, and the child, periodical payments, lump sums and the transfer of property. We also have the Child Maintenance Service, successor to the Child Support Agency. Getting child support from unmarried fathers has always been like getting blood from a stone, and nothing in this Bill will alter that sad fact.
The argument will be made that so-called wives who married in unrecognised Muslim ceremonies need financial support, but it is not a good thing to change our law in a significant way for everybody to accommodate Sharia law. It is not right for some couples to overlook or ignore our marriage law and then try to rely on it later when things go wrong, especially since I understand that there are provisions in Sharia law for alimony and something similar at the end of a union.
This Bill is a real vote loser. It is an attack on the liberty of two people who have refrained from marrying. Either they have good reasons not to—for example, preserving property from a previous relationship—or they are trying out the relationship before cementing it. It may well be that one of them would like to marry and the other holds back, but we do not have forced marriage in this country. We observe the human rights of privacy and respect for family life, which the provisions of this Bill ignore. Professor Cretney, a former law commissioner, has written that it is hard to understand why those cohabitants who express distaste for marriage and all its legal trappings should want the benefits of a comparable legal regime, with all the financial and emotional costs of litigation, and that it is possible that the scheme will become the instrument of exploitation and harassment. In fact, consultees to the Law Commission were finely divided on this.
Ordinary members of the public do not want this. Here are some quotes from the Guardian—please note, they are not from the Daily Mail:
“When is the state going to recognise that cohabiting couples are adults who choose to live their lives that way precisely because they don’t wish to have busybodies—either religious or state-sponsored—poking into their personal affairs?”.
“In an increasingly difficult world why make the very ordinary occasional experience of people choosing to live together for a while, as a test marriage or whatever, fraught with paranoia?”.
“All it will do is ensure that virtually every ended relationship will end up in court, enriching family lawyers at the expense of the cohabitees themselves”.
I am sure there are plenty of openings for legal dispute in this Bill. What does it mean to live as a couple when there are so many lifestyles today? If it means a sexual relationship, the Bill should say so. Either way, a degree of inquisition is bound to follow. The Bill implies that a sexual relationship is the key to getting financial support. It is a pity that the sexless sisters who live together for decades are still not recognised as deserving of any tax breaks, an issue I have raised before.
The Bill sends a bad message to career women. Why should the mistress of a rich man get, for example, £5 million after a couple of years of childless cohabitation? Why should two students who shared a flat find themselves exposed to legal action? Why should a woman with a good career, who is deserted by the man she had hoped would marry her, face demands from him for her money? Cohabitants know that they are not married, and they have chosen to draw back from it. There is nothing to stop them marrying, as there was years ago when divorce was difficult. If they are dissatisfied with insecurity, why not pop down to the register office and marry to get rights? Couples may be trying out a relationship and we should not impose the penalties of a failed marriage on those who thought their experimentation would preserve them from precisely that fate.
What is it about cohabitation that must be recognised? Nothing has yet replaced the traditional symbols of legal commitment: the ring, the ceremony, the contract. Today there is a general practice of not committing—relationships, rules and futures are ambiguous. A University of Denver study demonstrated that men see the moment of marriage, not cohabitation, as the assumption of responsibility, whereas women see attachment and living together as more binding. Therefore, there is an inherent clash of perspectives. Less than 4% of cohabitations last 10 years or more, and the more frequent and longer the cohabitations, the more likely the subsequent divorce, which all adds up to a bad story for children.
The intestacy provisions in the Bill are not as detrimental to the family as were those in the earlier Bill on this in 2012, the Inheritance (Cohabitants) Bill. Nevertheless, I cannot see the point of fresh provisions when cohabitants already have the capacity to bring claims under the Inheritance (Provision for Family and Dependants) Act 1975, as relaxed by the Law Reform (Succession) Act 1995 to allow a cohabitant of two years’ status to claim. Such claims, pitting the surviving cohabitant against the blood family, can be bitter, expensive and protracted.
In sum, it is illiberal to impose on couples an intrusive contractual obligation, not freely entered into, and it will encourage inherently more unstable relationships. We should encourage contracts between those who share property. The opt-out provisions of the Bill would be a good model if they were opt-in in the alternative; in other words, this proposed law should apply only if the couple had read it and signed up to accepting it. Otherwise, we should retain a corner of freedom where couples may escape family law, with all its difficulties, uncertainty and crippling expense and intrusion.
Cohabitation is not marriage, now or historically. The research by my former pupil, Professor Probert, has shown that there never was a period in the past when common law marriage was recognised. People need the freedom to try alternative forms of relationship, not to have one imposed on them. No more bedroom taxes.
Lord Lester of Herne Hill (LD)
My Lords, it is an enormous pleasure to follow the noble and learned Baroness, Lady Butler-Sloss, who knows far more about this subject than I could hope to learn and speaks with great authority as, among other things, a former senior family judge. Like her, I should say straightaway that I am married. I have been married for 42 years and my wife has put up with me throughout that time. I am a very strong supporter of marriage. If I thought that this Bill would deter people from marrying, I would oppose it, and if I thought that it would coerce people into cohabiting relationships, I would find that inappropriate for the state. It does no such thing.
I should begin by expressing my gratitude to my noble friend Lord Marks of Henley-on-Thames for introducing a Bill that is more modest than mine, except in relation to a two-year rather than a five-year period. As I say, in other respects it is more modest and probably more realistic and in accordance with what the Law Commission has recommended. We have to live a very long time and we have to be very patient to achieve social reform in this country. Governments lack the imagination and energy to do it themselves, so we have to stimulate them, unfortunately, with Private Members’ Bills—or perhaps fortunately, since otherwise nothing would happen.
My noble friend Lord Marks got history slightly wrong. The first time I engaged with this was in 2002 at Second Reading of my Civil Partnerships Bill. In that Bill, I provided for opposite-sex couples as well as same-sex couples to be able to enter into civil partnerships. I did that because I was advised to do so by Stonewall, which thought that it might make the Bill more acceptable. Curiously, there was complete agreement about the need for gay and lesbian couples to be civil partners, but some of the more conservative and orthodox Bishops opposed the stuff about opposite-sex couples because they thought that it would threaten marriage. It does seem to worry people but there is no evidence from any country, including this country, that the existence of civil partnership schemes, as in Ireland or something more modest such as my noble friend’s Bill, in any way discourages marriage.
On the contrary, as Resolution has pointed out in its submissions and as the Royal Commission has observed, the evidence is that it does not in any way discourage marriage. It provides a safety net in order that, instead of the state having to bail out through public finance the consequences of irresponsible men abandoning the women and children they have been involved with and putting the women—the mother—on social security, it makes the bad men pay instead of us as taxpayers, which I hope that the noble Lord, Lord Farmer, understands. If one looks at this Bill through the eyes of an economist or someone concerned with money, the effect is to transfer some of the burden away from the state on to irresponsible common-law husbands and fathers.
The noble Baroness, Lady Deech, is the most doughty, indefatigable campaigner against everything that I have just said. I hope she will not mind my saying that, if I put in the scales her views and the views of the Law Commission, the noble and learned Baroness, Lady Butler-Sloss, the Supreme Court of the United Kingdom and Resolution, they and their evidence seem to me to be more persuasive.
Baroness Deech
Perhaps the noble Lord will allow me an intervention. On one side of the scales we have lawyers, not the public. The consultees who responded to the Law Commission who were members of the public were largely against this. Even the Supreme Court has a variety of views. On my side of the scales, I offer the public.
Lord Lester of Herne Hill
I am grateful for the intervention, but it does not match the facts. Resolution, for example, indicated what it called,
“strong public support for change: almost 90% think that a cohabiting partner should have a right to financial provision on separation if the relationship has been either long-term, involved children, or has involved prioritising one partner’s career over the other’s”.
It gives other evidence as well, in which I am sure the noble Baroness would be interested.
Going back to the judiciary and the Supreme Court, my noble friend Lord Marks referred to the noble and learned Baroness, Lady Hale. Although she is outstanding in all respects, what was impressive about the Gow case was that the three English members of the Supreme Court—Lord Carnwath, Lord Wilson and the noble and learned Baroness, Lady Hale—all said the same thing. They all referred to Professor Elizabeth Cooke, the Law Commissioner who leads the commission’s work on this. They quoted her as saying:
“‘We hope that implementation will not be delayed beyond the early days of the next Parliament, in view of the hardship and injustice caused by the current law. The prevalence of cohabitation, and of the birth of children to couples who live together, means that the need for reform of the law can only become more pressing over time’”.
The other two members of the Supreme Court were Scots. Since it was a Scottish case, they dealt with the Scottish issues. However, these were the three English Supreme Court judges speaking as one. They said:
“As Prof Cooke also pointed out, the ‘existing law is uncertain and expensive to apply and … often gives rise to results that are unjust’ ... There was no need to wait for experience north of the border to make the case for reform”.
I know perfectly well, because the coalition Government have said so, that they have no intention of doing anything about this during the lifetime of this Government. I also know perfectly well that the Conservative part of the coalition is deeply opposed to such a measure because it is considered to undermine marriage in exactly the way that the right reverend Prelate was worrying about. I repeat that there is no evidence whatever for that. I think that having a modest safety net, which is all that this Bill is, is better than saying to couples who do not understand the law or understand the limits of being in a so-called common law marriage, “It is better to marry than to burn”. That was said by St Paul, but I do not regard it as a guiding principle for legislation.
This being Liberal Democrat core policy, I can only say that I am delighted to await the views of the Official Opposition on this, as the only hope that I can see for such a measure being adopted is a change of government. It will not happen under a Conservative Government and it probably will not happen under a Conservative coalition Government; it can happen only if there is a Labour Government or a Labour coalition Government. I am sorry that that is the position because I would have hoped that the issue could transcend party politics. I am sure that there must be some within the Conservative Party who understand that this is a conservative measure doing limited justice to a very vulnerable group.
Lord Lester of Herne Hill
I am grateful for the advice about how I should vote. Since I will not have a vote, it does not make much difference.
I want to say something about British Muslims. It is a very important subject. There are 2.7 million British Muslims, I believe, in this country. There are 300,000 British Jews in this country. Because of the injustice of British Jewish orthodoxy about the so-called chained wives, I and others introduced a Private Member’s Bill, which was supported by the noble and learned Lord, Lord Mackay of Clashfern, to enable an injustice done to a very small number of orthodox Jewish women to be remedied. How did we—the noble and learned Lord, Lord Mackay, and the rest of us—do it? We did it by saying to orthodox Jewish men, “If you want to leave your wife for somebody else without getting a get”—a written consent—“you will not be able to get a civil divorce and you will therefore not be able to remarry”. We put that in a Bill because the Chief Rabbi and a small number of Jewish victims needed it.
I was then told that my Bill was discriminatory because we did not give the same benefit to Muslims, so we amended it to give the same benefit to Muslims if they asked for it to be applied to them. The male-dominated hierarchy of British Muslims did not do so and the position is exactly as the noble and learned Baroness, Lady Butler-Sloss, said: many Muslim women are now extremely vulnerable because they do not have registered civil marriages; instead, they have unsatisfactory arrangements that give them no protection if the men treat them very badly. I am not suggesting that the whole of this Bill is designed to deal with that—not at all—but I am suggesting that it is not something that we can ignore on the grounds that this is a small minority, if that is what the noble Baroness, Lady Deech, meant to say.
Baroness Deech
My Lords, I think that is a rather unfair comparison. Jewish marriages are carried out according to the law of this land. In fact, as far as I understand it, the Jewish orthodoxy insists that a couple get married according to the law of this land. I disapprove of the way men use get just as much as the noble Lord does. That provision was only to try to put pressure on the men to give a get, and it does not necessarily work. What we are talking about is people complying—at least, they ought to comply—with the law of this land. We ought to be encouraging, as a matter of integration and the rule of law, that Muslim marriages are carried out according to the law of this land. That is what Jewish marriages do. They are registered civilly, like any other—100% kosher. Muslim marriages should not be allowed to escape under the net. We must help people by insisting somehow that they get married properly.
Lord Lester of Herne Hill
I do not disagree with that as an aim, but I think I am more in favour of choice than the noble Baroness. The thing about the Bill—and about Jewish marriage law—is to encourage choice and protect vulnerable people. This does not force people into cohabitation. It does not force people into marriage. It does not force Muslims into having to register their marriages as civil marriages. It does not do any of those things—it simply provides a basic safety net, and that safety net should apply to everyone, including British Muslims. I am sure that is common ground.