This post won Family Lore’s Post of the Month Award for November 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 21^st 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 21^st Century family everywhere in our country – except Scotland.

Image credit: docman

From the comment pages of the Yorkshire Post, 23/10/2009.

Divorced from reality in the 21st century

By Marilyn Stowe

WE should all be raising glasses this week to celebrate the 40th anniversary of the Divorce Reform Act 1969 gaining royal assent.

The landmark statute made divorce easier, introducing what became known as “quickie divorces”. It eliminated the previous extensive, fault-based procedure, was a milestone for women’s rights, and its momentous implications are still being felt today.

On the statute’s birthday, however, I am horrified to note that the divorce wind now appears to be blowing in the opposite direction, with prominent commentators suggesting divorce should be made harder and settlements less favourable to ordinary women.    Continue reading >

Jonathan James’ post

But the pain these men obviously feel may be more positively focused elsewhere. In 1992, I wrote a book, “Divorce – A New Beginning”, calling for marriage, rather than divorce, to be made harder. When a marriage has broken down and love has gone, I wrote then and still believe, it should be swiftly ended with dignity and civility, in a process not focusing on the past.

But I also wrote that getting married is simply too easy and should become more difficult in law. I felt then that marriage had become too focused on the Big Day – the dress and the party – rather than what it means in law: a voluntary change of legal status, by consenting adults, to one of joint partnership, with all its incumbent obligations. This is something not to be entered into lightly. I was concerned then that the real meaning of marriage had been lost.

What is our understanding of marriage in 2009? If anything, it seems to have worsened. In the glare and fallout of celebrity weddings, splashed across the media – particularly widely-read glossy magazines – marriage seems to have become even less meaningful than it was in 1992. It has become commonplace to have children before the marriage takes place and, overall, the wedding day itself is an excuse to party.

In Living TV’s “Four Weddings”, the first series of which has just ended, a quartet of brides was asked every week to vote on each other’s dress, venue, food and overall presentation. The couple whose wedding was judged the best won an expenses-paid honeymoon.

Each programme strove to take the word “fantasy” to new heights – from the currently universally accepted Princess-style dress (strapless, with a massive skirt and train, because every woman dreams of being a princess when she gets married) –  to brides emulating a distinctive shade of pink, chosen in homage to their heroine, the former topless model Jordan, and arriving, in one case, in the same pink glass coach.

The eclectic mix featured one bride who was a secret witch and others who engaged in pagan ceremonies. One ceremony took place in an underground cave and another was for leather-clad bikers. Ceremonies at registry offices were frequently dismissed as too dull and one in church was described by a bride as “boring”.

Varied celebrations followed, in indoor and outdoor venues spanning working men’s clubs, hotels and football grounds. Unfortunately, some guests were not at their photogenic best – many of them were shown the worse for wear on an almost empty dance floor. Drunken dancing dads and best men’s bare bottoms were a source of entertainment.

In each programme, there was a vote after every wedding party and the four brides were then filmed, in full wedding regalia, on an airfield, waiting for the winning groom to arrive and whisk his successful partner off on their expenses-paid honeymoon.

Does this programme sufficiently respect the solemn commitment the couple has entered into? Does it sanctify the four marriage ceremonies that have taken place and are the reason for the parties in the first place? But, more importantly perhaps, does it accurately depict the state of marriage within our society today? And, if it does, don’t we urgently need to do something about it?

I know better than most that marriage just isn’t about fantasy dresses and parties. It can be dull and boring. It can be a desperately unhappy place for one or both partners. It’s easy to fail at marriage, even after many years or if one spouse thinks all is well, and the tears of happiness can fast turn to those of sadness and worse. The misery and despair of broken marriages stand out from the comments on the post I mention above, which speak for themselves in all their unhappiness.

But how do you guarantee success? No-one can, although I think that entering into marriage with real and solemn commitment, because the spouses are genuinely suited to each other, want to be together through thick and thin – bad times and good, wealth and debt, happiness and grief – and share the ability to laugh all the way through is a good start. Before marriage, I think couples should be expected to focus on what they anticipate from it and their future spouse. They need to examine themselves deeply, to ensure, as far as possible, their marriage is really going to last. The more the focus on the wedding, as opposed to each other, the more likely the union is to end in tears. I have had several clients who married only because arrangements had gone too far to call it off.

It’s nice to see a funny, lighthearted TV programme – about people having a good time, laughing and enjoying themselves – but as I watched this series, I felt worried, as well as amused. If you want to make a programme about parties, should it be tagged on to getting married? And if that’s indicative of what marriage has now become, isn’t it time to do something serious about it?

The article concludes with a list of “big money” cases in which wives were given very substantial capital awards and maintenance after short marriages.

Given recent decisions such as Hvorostovsky v Hvorostovsky, one can see how all the excitement arises.  Mr Hvorostovsky finds, following a Court of Appeal, decision, that his maintenance liability should increase so that his former wife has some £37,500 per year more than she actually needs!  The reason for this increase was nothing more than the fact that the husband now has a much larger income of his own.  It is all too easy to assess the acute sense of grievance felt by such a husband, particularly where he presumably has to work very hard for this level of earnings where his former wife is able to live a life of leisure.

The shortcoming of this debate is that it concerns a vanishingly small minority of cases.  Even in specialist practices such as ours, the vast majority of our clients are working out how to deal with assets and financial resources which do not even meet both parties’ needs.  Most cases are about dividing up deficits rather than surpluses!  A cursory glance at the national divorce statistics shows why this is so.  The highest divorce rates are for men and women in their late twenties.  People like this are very rarely afflicted with large amounts of money!  The national statistics also show that more than half of all divorces come before the parties have been married for 12 years.  Again, this rarely reflects a husband who has reached the pinnacle of his career.  Ask a busy family law practitioner and you will be told that the typical divorce involves a couple in their late 20’s to mid-30’s with a ten year relationship behind them.  There will probably be a couple of young children.  The family wealth amounts to the equity in the house they live in and perhaps a bit of a pension that the husband has paid into.  The financial outcome for the husband and wife is usually highly unsatisfactory for both.   The husband is not going to see any money until the children leave home, as often as not; the wife is going to be living for years to come in the knowledge that one day the husband will have to receive some money because there is no way she can afford to buy him out at this stage.  In other words, a problem is saved up for the future.  In the meantime, the husband pays child maintenance only because that is all he can realistically afford.

The sort of cases about which Lady Deech is talking about are few and far between.  It is hardly a major matter of gender-equality deserving of major public attention or legislative time.  It may be old-fashioned, but marriage always seemed to be about sharing – sharing the good times in life and sharing the hard times too.

However, there is another aspect of fairness that Lady Deech appears to have overlooked entirely.  During the first ten years of a marriage, the husband is often getting firmly established in his chosen career.  If, after ten years, the marriage ends, the wife finds herself in the position of having been her husband’s helpmeet and support in those critical early years, but cut adrift just as he can expect to see a return on his efforts.  Is it remotely fair for such a wife, having been promised by the husband as part of the marriage that she will share in everything he has, to be told that now all bets are off and she must get herself back out and find whatever employment she can, probably circumscribed by childcare commitments?  This is the key distinction between marriage and cohabitation – marriage is all about commitment.  We live in a modern world in which cohabitation no longer has the old stigma and it is regarded as a perfectly reasonable alternative.  If a man chooses to promise to his life partner a full commitment of sharing everything, how then can he complain when a Court expects him to deliver on it?

The reality is that the series of lectures is of tiny significance only to the ordinary run-of-the-mill cases which occupy Courts on a daily basis up and down the country.  For the overwhelming majority of professionals, high-flown arguments about a judge’s discretion are interesting but don’t change anything.  In the main part judges are exercising their discretion to decide how inadequate resources should be apportioned to limit the misery to both parties, not how to divide a superabundance.

Stowe Family Law is the UK’s largest specialist family law firm, with offices and divorce solicitors in London, Yorkshire and Cheshire.

With an outstanding national and international reputation, the firm provides a full range of private client family law services. Our divorce solicitors are praised by clients, the media and legal guides for their knowledge and expertise.

Marilyn Stowe and members of the Stowe Family Law team

Wedding cake image credit: weelakeo.