(based on notes made at a meeting with MPs at Portcullis House)
The panel of MPs numbered six including Henry Belligham, Tim Loughton, Edward Timpson, Maria Millar, Eleanor Laing, and for a short time Dominic Grieve.Discussion revolved around two main areas, 1/. pre and post nuptial contracts/agreements and 2/. giving female cohabitees more property rights as per a divorced spouse.
The meeting was addressed by several speakers including Derek Munn (?) from Stonewall, James Sandbach from Citizens Advice Bureau, Elizabeth Cooke from Reading Uni. who is also a Law Commissioner (together with 2 male colleagues), a Karen Mackay from Resolution (a family law solicitor grouping) and an Edward Hess, a lawyer.
I missed most of what the representative (Derek Munn) from Stonewall had to say but in the short question time afterwards he replied to MPs that he saw nothing to object to in the Lord Lester proposals and didn’t see the Law Com proposals as compromising the position of gays.
http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090325/debtext/90325-0004.htm
See also Mary Creagh MP (Wakefield, Lab) proposals on cohabitation reform in a private members Bill (March 25th).
I therefore asked him if he had considered the situation where homosexuals had a free choice of 3 marital conditions, namely, 1. a civil union, 2, cohabiting with restrictions/liabilities and 3, cohabiting without restrictions, when what was planned by the Law Comm. for heterosexuals was the abolition of option 3 leaving them with only option 1 or option 2, i.e. both with potentially punitive property confiscation implications.
In reply he reiterated that Stonewall saw nothing in the Lord Lester proposals that were objectionable and didn’t read into the Law Com proposals any such restrictions.
Elizabeth Cooke Professor, Reading Uni., became Law Commissioner in July 2008. She has responsibility for property, family and Trust law. Among her many publications are: ‘Land Law’; (Oxford, Oxford University Press); ‘Community of Property: a regime for England and Wales’, research report co-authored with A Barlow and T Callus (Nuffield Foundation, 2006); ‘Community of Property - A Study for England and Wales’, by A. Barlow, T Callus and E Cooke (2003)
Elizabeth Cooke from Reading Uni. and a Law Commissioner was the next speaker. She began with a long introduction about how the Law Commission was set up with a remit to have no political view or opinion (all very well but its Commissioners, oddly enough, all had very strong ideologies). The Law Commission, she said was assigned to look into, among other things, ‘pressing issues’ (which cannot be interpreted as including much of their work and certainly not reforming cohabitation).
She was very ‘wordy’ and seemed to take forever to say very little and even less of that was ‘concrete’. It was all very esoteric and hypothetical. What she did manage to be concrete about were rates and facts that she had obviously not checked – or thought her audience would not know.
For instance, she maintained that the number of women loosing out by not having rights after cohabiting for 20 years and having raised children was alarming high.
When asked to quantify this she could not. She could not even respond to whether such women, in terms of percentage of households, represented single of double digit figures. However, she was sure it was high and the trend was that it would become bigger.
In actual fact, around 11% of households are of a cohabiting nature and one has to estimate from other data that cohabiting relationship of 20 or more years duration must be in the order of 1%. [1]
Figure 1, below, is taken from ONS statistics. Cohabiting mothers are easily outnumbered by SLM, i.e. single lone mothers, (1,412k v 2,829k) and while many of the SLM may be cohabiting, arranging legislation to suit the ‘musical chairs’ transience of their partners promises to be an administrative nightmare.
Fig 1. Dependant children and marital status
http://www.statistics.gov.uk/downloads/theme_compendia/fog2004/gender.pdf
Given that most things for cohabitees can be attained or resolved within the existing law, i.e. FLA 1996 (e.g. non-molestation and occupancy orders), the need for radical reform would seem to shrivel.The ability to enact such orders has been extended to not only cohabiting couples but to non-cohabiting couples too (Section 4, ‘associated person’, section 33, quote, “have never cohabited or have never been married”). An applicant, i.e. a female, in a cohabiting or non-cohabiting female relationship can apply for an occupation order not only where she has lived with the respondent but where they had intended to live !
Many of those cohabiting relationships will evolve over time into marriage with other younger people cohabiting to take their place and so the ratio will remain fairly constant.
This leads onto another technicality; what is not realised by almost everyone is that cohabiting relationships are not a ‘stock item’ implying permanence and measurability but a ‘flow variable’. To compare them with marriage is to compare coal to diamonds - similar in their carbon parts only.
Elisabeth Cooke made the point that a recent case had revived the argument about whether pre-nuptial agreements were valid. She referred to a Privy Council case in vague terms and I have since found out it is MacLeod v MacLeod decided by the Privy Council involving a North American couple who had not a pre nuptial but a post nuptial agreement (‘Family Lore’, Dec 18th 2008)
http://www.familylore.co.uk/2008/12/macleod-v-macleod-post-nups-valid.html
Both MacLeods were American, were married in 1994. The husband was considerably wealthier than the wife. They had entered into a pre-nuptial agreement on their wedding day (valid in the US but not in Britain). It provided for each spouse to retain their separate properties brought into the marriage and property acquired post marriage to depend on legal title. If they divorce each party waived their right to claim any sort of maintenance. Properties owned jointly were to be divided equally between them.What this case highlights is the totally unrealistic demands of the family courts to hold a husband responsible for his ex-partners housing needs (costs) when she already has the ability to acquire it from the financial provisions he has already made – a demand insisted upon by family courts, day in day out, of men of far lesser financial means.
The husband agreed to pay the wife a lump sum calculated as $25,000 for each full year that the couple had been married and regardless of time or location the agreement should be construed in accordance with the laws of Florida. The family moved to the Isle of Man; the marriage broke down, and the husband began divorce proceedings in 2003.
During the marriage, two further agreements were assigned that included a provision that, in the event of divorce or the husband’s death, the wife should receive £1,000,000 sterling, adjusted for inflation since February 2002.
The wife claimed full financial provision, asserting that the agreements should be disregarded, as "unfair pressure" had been put on her. The husband claimed that the third agreement should be upheld, which would have meant giving the wife £1.89m.
The Isle of Man court rejected the wife's claim but agreed she should be given an additional £1.25m for accommodation, and said it should be paid directly to her rather than held in trust. The husband eventually appealed to the Privy Council ("the Board"), on the issue of whether the housing needs of the wife and children should be catered for by the lump sum, as ordered by the judge, or by a trust fund, as proposed by him, and the argument turned on the validity and effect of the 2002 agreement.
Cooke also made the point that Scotland had already enacted cohabiting rights law and though it had run into a little difficulty - as was predicted by RW - it was a separate and distinct regime to that proposed for England and Wales (so it will be untried !).
To legitimise the concept of legalising cohabitation the Australian experience was cited more than once by speakers. They were of a view that it was working well.
(I do not understand why they emphasised the Australian experience when New Zealand has had such a law for much longer).
She was asked by one of the MPs (HB) if she thought the 1996 Act could be resurrected and made useful in this regard. Her reply was that she was unsure. (I then interrupted and asked for clarification that it was the Family Law Act 1996 and they confirmed it was. I then said that this particular Act carried within it a poison pill and HB thanked me for the warning).
I can see now - but I couldn’t then - why the FLA would be useful to pro-cohabitee activists. Although it is about marriage and how to dissolve it, it carries within it the creation of a new legal entirety known as an “Associated Person.”
Part 4 of the Family Law Act 1996 which is enacted and in operation (though Parts 1 and 2 are abandoned and inactive) empowers a court to intervene between not only married and formerly married couples but also cohabitees and former cohabitees.
It goes further and embraces those "living together" or having lived together in the same household (other than as employees, tenants, lodgers or boarders), or by simply being related, i.e. mother-in-law, uncles and aunts etc, having parental responsibility for a child, or 'an agreement to marry', which takes us back to the 1960s and the ludicrous situation of 'breach of promise' suits which the Law Comm. described at the time as a charter for "gold diggers".
There are likely to be moves therefore to resurrect the concept of ‘associated person’ (see FLA 1996) in order to access and then confiscate property for the ‘vulnerable’ partner, i.e. the woman.
The same Act but in Schedule 10 places a duty on the court to consider making a non-molestation order. In order to make these effective Occupation Orders will be needed. Occupation orders regulate the occupation, so the owner of the house, invariably a man, will be legally excluded and the occupation rights of his own property might well be terminated or restricted (see also Ouster orders and 2004 amendments).
The question of why it was seen as perfectly reasonable for fathers and men to always fund such reforms was met with a chorus from her colleagues, who rejoined that “we” and the court must always put children first (the paramountcy mantra).
But must we put children’s alleged rights ahead of fathers ? Are those fatherly rights to be legitimately sacrificed on the CBI Altar (Child’s Best Interests) ?
Do millions of children want to know they are the cause for their father’s poverty? That his homelessness was the result of self-righteous solicitors carping on about female and children’s rights ?
How will they feel about that when they grow up ? Most of the nation’s homeless are men - and most of them are ex-servicemen. Is this the way a nation rewards its defenders ?
Several questions were then posed re: 1/. How could family courts cope when they were already creaking under the load of divorce cases and 2/. How could it be afforded given that 50% of cohabiting couples separate every 2 years on average and the great majority within 5 years the reply was that it would not affect courts and 3/. How could justice be assured when family court proceedings are held in secret ?
The benefits, in Cooke’s mind, were that arbitration would be transparent because if would be outside the court. It would be a cheap and quick option with no burden on court time – she envisaged a “do it outside the system” approach. How, and who would undertake this role was not outlined.
She then moved on to how the reforms would be enacted, the formulaic approach to male and female wealth and power versus vulnerability mantra, and the question of whether couples should be allowed to 'Opt Out' or 'Opt In'. She, and the legal minds present, were at one in believing that all cohabiting couples should have to 'Opt Out' as this would protect the vulnerable cohabitee, i.e. the female, and should be the default position unless it could be shown otherwise.
To the objection to this last point and the proposal of adopting a purely 'Opt In' option came the reply that many women were put off marriage by its attendant costs (said to average £10,000 per wedding) and of genuinely not knowing they had no legal rights when their long term relationship ended.
To the proposition that perhaps money ought to be better spent on an education programme for women came the reply that this might be an adjunct but would not erase the problem.
IMO, having to 'opt out' would mean there was to be no vestige of property entitlement for the purchaser and no benefits accruing therefrom. This is a moot point with collateral implications that can only be speculated upon at this point in time.
Is there a conflict of human rights at stake here ?
Should the inalienable right to purchase, own and 'enjoy' property be comprised by an alleged 'human right' of another person to profit by controlling and enjoying that property upon separation ?
The Romans made the sharp distinction between formal marriage versus 'free marriage', cohabitation and concubinage. That distinction was in the acceptance into the family of the spouse (i.e. the wife) upon formal marriage only and no compensation was ever paid upon separation in the other forms of relationship which, from one epoch to another, were briefly fashionable and occasionally recognised by the state.
This brings us, if not to the crux, then certainly a significant branch in the road. If the Civil Partnership Act 2004 which will probably be used in conjunction with FLA 1996 as template, is examined the working in other jurisdictions implies a statutory nature of it being ‘registered’ and for ‘life’.
Fig 2. Meaning of overseas relationship: specified relationships, SCHEDULE 20
Source: Civil Partnership Act 2004,
http://www.opsi.gov.uk/acts/acts2004/ukpga_20040033_en_1
| Country or territory | Description |
| Belgium | cohabitation légale (statutory cohabitation) |
| Belgium | marriage |
| Canada: Nova Scotia | domestic partnership |
| Canada: Quebec | civil union |
| Denmark | registreret partnerskab (registered partnership) |
| Finland | rekisteröity parisuhde (registered partnership) |
| France | pacte civile de solidarité (civil solidarity pact) |
| Germany | Lebenspartnerschaft (life partnership) |
| Iceland | staðfesta samvist (confirmed cohabitation) |
| Netherlands | geregistreerd partnerschap (registered partnership) |
| Netherlands | marriage |
| Norway | registrert partnerskap (registered partnership) |
| Sweden | registrerat partnerskap (registered partnership) |
| United States of America: | |
| - Vermont | civil union |
What is being proposed for England & Wales is a non-registration system for heterosexuals (as I interpret the Law Comm.’s paper) but not for homosexuals.
Cohabitating heterosexuals will be treated as if they have registered but cohabitating homosexuals will not be so considered unless they utilise the Civil Partnership Act 2004. The above table shows how same-sex unions are legalised by registration. Why cannot the same be done for cohabitation ?
There will, in many practical circumstances, be no option for heterosexual men to opt in or out; it will simply be ‘deemed’, i.e. presumed, that the male cohabitees has opted in by the fact that he has not actually opted out. This default position will be an abuse of governmental power far in excess of the alleged abuse (of women) it intends to rectify.
If the argument is that marriage and all its ceremonial and catering costs are too great for most couples then there already exists the less expensive vehicle of marriage at a Registry Office. The logical extension would be to extend the use of the Registrar’s Office to encompass cohabiting agreements for heterosexual couples who want to opt in.
A vigorous exchange then took place regarding ‘welfare dependency’. The point was made that many SLM (single lone mothers) were in fact cohabiting and that the benefits regime encouraged cohabiting women to declare themselves to be SLM; this would not reduce if reforms were introduced and the drain on the Treasury or tax payer would not relent. In fact, it could be predicted that the burden on the tax payer would increase as low income SLMs would be entitled to Legal Aid upon separation whereas their male partners would not.
In addition, the state would have to allocate extra resources, i.e. buildings, staff, training, to deal with the number of cohabiting cases it presently did not have to consider. No reform comes free of ‘collateral damage’ which is what is being promised now. Previous experience shows us that the Law Comm. reforms have always had both expected and unexpected costs. And beyond that we only have to look at the changes of Morris Finer in the Finer Report intended, in order to realise the opposite is often triggered. (The Finer Report of the 1970s has brought us only more illegitimacy, not less, and more single mothers, not less, and more SLM and children living in poverty, not less. In fact it was the starting point for what is popularly called today the dependency culture).
Far from moving us away from a dependency culture the speaker was challenged to explain how legalising cohabitation would avoid creating yet another layer of the dependency culture and or of reinforcing the present one.
The reply was that no figures were available as to the cost of dependency, or of the number of families’ dependant on benefits, or the true extent and cost of divorce.
It was then pointed out that at least one parliamentary report had quantified the cost of divorce and that the ONS regularly quantified the impact of fatherless children and husbandless mothers (see Social Trends and Population Trends).Her reply was that the Law Comm. was not aware of this, which earned her the immediate retort to the effect that surely the Law Comm. was obliged to examine and source this data before presenting its proposals ?
There was then an interruption from one of the MPs and the exchange was cut short.
What is clear from ONS produced statistics is that the increases in re-marriages promised by the Law Comm. plans in its build up to the reforms of 1969 just haven't happened (‘Table 2.1 Marriages and divorces, 1996-2006'). In 1996 the number of re-marriages was 53,642 and in 2006 it had fallen to only 43,398. This is also true where it was a 2nd marriage for one of the parties; the numbers having fallen from 64,653 to 50,061 in 1996 and 2006 respectively. (ONS: http://www.statistics.gov.uk/downloads/theme_population/FM2no34/FM2_No34.pdf)
Is this telling us that the penalties of re-marriage are too great and that the knowledge of those penalties are seeping down to the divorce and to the never-married - where first-time marriage, at 145,995, is at a century low point ?
Is the emotional investment in marriage no longer worth the candle ? Are the population, birth and marriage rates falling because there is no incentive for men ?
In academic circles it seems the agreed currency is to assert that:
“ … The increase in cohabitation has occurred alongside other, related, major demographic shifts, including: rising levels of divorce; delay in entry into marriage and childbearing; and, a rise in the proportion of births taking place outside marriage. These are all characteristic of the second demographic transition (Van de Kaa, 1987; Lesthaeghe & Surkyn 2004), although rising levels of cohabitation in the UK have only partially offset declining marriage rates (Berrington & Diamond, 2000).” - By Ernestina Coast (Lecturer in Population Studies, London School of Economics), ‘Currently cohabiting: relationship expectations and outcomes in the British Household Panel Survey (BHPS).’But isn’t this missing the point about cohabiting ?
She links both ‘major demographic shifts’ (but these are not explained) and divorce to cohabitation. But is the increase in cohabitation merely due to random and naturally occurring ‘major demographic shifts’ or a realisation by the population of the cost and pain of divorce as presently constructed ? Money, like pain, alters choice and therefore human behaviour.
What explains the slump in Roman Catholic marriage, an otherwise bastion of tradition and influence with a stronger adherence among its flock than other churches who have seen a less steep decline ? Fig 3 below show the decline from 1981 to 2001.
Click in figure 3 for a bigger and better view
Fig 3. Summary of marriages, http://www.statistics.gov.uk/STATBASE/Expodata/Spreadsheets/D7951.xls
[As an aside, it has to be said that not only did the content of the Family Law Act 1996 arouse deep controversy at the time but the very procedural devise employed angered many. The abuse of the Jellicoe Rules to get it through parliament was interpreted as an attempt to avoid Parliamentary scrutiny and suppress public debate. If passed (and it was for a short time only) it would have recognised and legitimised for the first time in English Matrimonial Law so-called common-law-wives. Spousal rights, once the preserve of bona fide married women, were to be extended to women cohabitees (men would not gain only suffer). As a consequentially, the potential scope for litigation was substantially enlarged (see Trust law actions, below)].
Throughout the delivery Elisabeth Cooke seemed to be addressing the two men directly in front of her who seemed to nod and titter at the appropriate places.
The next speaker James Sandbach, was from the Citizen’s Advice Bureau (CAB). He was not a legal expect but brought everyday experiences of women left with nothing to the seminar. Even he had to admit it was not a huge problem numerically and that most of the cases involved impoverished couples anyway – a point conceded by Elisabeth Cooke when she earlier described the near impossible for the courts of spreading meagre household incomes across two households.
Asked about the implications to Land Law and the philosophy of property that stood behind it, he made no reply possibly because he had no technical experience.There was not the opportunity to acquaint any of the speakers with the facts in the pubic domain and the implications their proposals would have on ordinary peoples lives, that is to say:-
- The ‘engine’ of wealth creation is the married man – not the cohabiting man (from US Pres’l advisor George Gilder, 1973. to Patricia Hewitt MP 1996 IPPR).
- Cohabiting men and single men are lower income earners and are more likely to be unemployed, work part time and/or to live on benefits.
- As far back as 1993 the divide between married and non-married men was noted by the ONS - an earnings divide replicated between married and non married mothers, i.e. SLMs.
- Single mothers pose the greatest avoidable burden to the Treasury. They require more subsidies, yet never provide commensurate/off-setting tax revenue.
- The escalating financial burden on the Exchequer, of these ‘alternative lifestyles’ i.e. SLMs, has seen Gov't forced to create the £2 billion bureaucratic CSA, which collects a mere £15 million (Children First, Green paper).
- Lord Irvine, when Lord Chancellor, complained about the cost of divorce, put at £5 Bn pa.
- More recently the cost of divorce to the nation has been calculated to be in the realms of £30 billion (The Cost of Family Breakdown, Sept 2000, David Lindsay [assisted by R Whiston]).
- Additionally, the cost of subsidies to single lone mothers (SLM) in Social Security terms was put (at 1994-95 prices) at £31 billion pa (R. Whiston, ManKind paper).
The last of the speakers was a young lawyer called Edward Hess, who was introduced as being well practiced in cases involving cohabiting women. He spoke of the large numbers and wide scope of cases he had handled. They were all forced to be settled in Trust Law cases and involved ‘proprietary estoppel’ or “resulting trusts” or “constructive trusts” etc.
Edward Hess saw this as entirely unsatisfactory, “Large numbers of cases ended up in Trust Law … and absorb a lot of legal time” because they could not be properly dealt with in matrimonial law or in the family courts.
However, for the estate of a dead man to end up in a legal trust battle indicates that the estate was worth fighting over. It cannot be credibly envisaged that the estate of a cohabiting man of average income, or living on benefits, or living in a council flat would have an estate worthy of dispute by his cohabitee against his relatives each of them hiring their own set of solicitor and lawyers ?One is reminded of Dickens’ great fictional (but based in fact) court case Jarndyce v Jarndyce:
The Jarndyce case concerned the fate of a large inheritance. It had dragged on for many generations prior to the action of the novel, so that, by the time it is resolved late in the narrative, legal costs have devoured nearly the entire estate. The case is thus a by-word for an interminable legal proceeding. Dickens used it to attack the Chancery Court system as being near totally worthless, as any "honourable man among its [Chancery's] practitioners" says, "Suffer any wrong that can be done you rather than come – ‘Bleak House’ by Charles Dickens.Hess prefixed is comments by seemingly to disparage the genuinely held views of Melanie Phillips and Simon Heffer (?), “We don’t want any of that sort of thinking here today was the gist and acknowledged that the room contained one traditionalist voice that had opposed everything that had so far been proposed.
In common with Cooke, Hess made mention of the recent Scottish development (presumably the legalising of cohabitation) and of the MacLeod decision. However, it must be remembered that the Macleod’s had enough money to take it through all the Isle of Mann courts and then on to the Privy Council.
It is all very well and laudable for lawyers to reform the law but should it bring unpleasant or dire consequences it is the voter that has to live with the consequences. He is not I suspect from a political science background and this is pivotal aspect that is constantly overlooked when social reforms are afoot.
There was no time to pose questions and after the meeting broke up in conversation with the last speaker, Hess, he made light of Baroness Deech’s opposition to Lords Lester’s Bill. He didn’t see the validity of her points and so did not agree with them (though she made precisely the ones we made to the Law Commission in 1995 !).The meeting broke up soon after 1 pm.
End Piece.
‘Common Law Marriage’, By Goran Lind (2008).
Few areas of Roman law have evinced as wide a range of opinions as classical matrimonial law. On the one end, it is considered "perhaps the most imposing Achievement on the Roman genius". On the other, classical marriage has been thought to provide "the true explanation of how the formerly so powerful Roman Empire could easily overthrown once the foundation of society - the family - had been broken. Regardless of the accuracy of these views, it may be confidently said that Roman Matrimonial law was fundamentally different from it modern European equivalents, which in recent times have been subjected to alien influences, primarily canon law. [p 31]…. Formless relationships [free marriages and cohabitation] were recognised as marriages and cohabitation was recognised.Roman marriage..…. [was] seen as a total community of life … a life long companionship for the whole of life ….. not simply a liaison for the purpose of meeting a limited need, such as sexual urges or procreation of legitimate children. [pp 31 – 33]
It would appear that the concept of maintenance and post separation payments or property adjustments had completely by-passed Roman legal mind.
[1] ONS, “Living Arrangements: 9 in 10 lone parents are women”, UK Office for National Statistics; Focus on gender; 8 January 2004, “one in ten [couples] are cohabiting”
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