Family lawyers hit back at Deech over cohabitation reform

The representative body for family lawyers has rejected claims that cohabitation reforms amount to ‘state forced marriage’ and would overwhelm the courts.

Resolution, which has 6,500 members, accused former Bar Standards Board chair Baroness Deech (Ruth Deech), a trenchant critic of the plans, of ‘failing to acknowledge’ the needs of 3.5 million UK couples.

Deech revealed today that she has written to justice secretary Alex Norris opposing cohabitation reform. The crossbench peer said the government risks ‘automatically imposing marriage-like legal rights and obligations on cohabiting couples without their consent’. Her letter also points to research suggesting that most couples have ‘heard little or nothing about the cohabitation proposals’. Deech claims an opt-in scheme would better preserve individual choice.

In a lengthy rebuttal, Jo Edwards, chair of Resolution’s Family Law Reform Committee, claimed there is a ‘clear democratic mandate’ for cohabitation reform, pointing out that this was a Labour manifesto commitment. Edwards said the poll cited by Deech which found that only 37% of respondents support the reforms ‘cannot negate that mandate, particularly when decades of evidence show widespread misunderstanding of the present law’.

The British Social Attitudes Survey, Edwards said, found that 46% wrongly believe in 'common-law marriage', virtually unchanged from 47% in 2005. ‘The strong case for reform is that millions reasonably expect protections which the law does not currently provide,’ she added.

Edwards also dismissed Deech’s claim that the proposals secretly impose marriage or create an equivalent ‘third status’.

‘They simply establish a safety net for relationships which meet clearly defined criteria and rights that would fall far short of those for married couples,’ she said. ‘Opposite-sex civil partnerships already provide an opt-in route, yet in the almost seven years since they were introduced for opposite sex couples have barely been taken up, meaning that they have not remedied the vulnerability of people who do not formalise their relationships or mistakenly believe they are protected. Nor should one partner have a unilateral power to remove the other’s statutory protection which could allow the economically stronger partner to impose an opt-out through pressure or ultimatum. A mutual, informed opt-out better balances autonomy with protection.’

Senior family judge HHJ Edward Hess has suggested that reform could generate around 10,000 additional Financial Remedies Court cases annually. This is also contested by Resolution.

‘Predictions of thousands of additional contested cases fall wide of the mark,’ said Edwards. ’Fair Shares research three years ago found that currently only 3% of couples needed a judge to determine their finances on divorce (with a further 2.5% having settled after court proceedings started), and mediation and other non-court dispute resolution are increasingly embedded in family practice. Other changes suggested in the proposals, such as the plan to give greater prominence to marital agreements and to simplify the law around finances on divorce, should lessen the strain on the courts.

’Overall, Baroness Deech’s resistance to reforming cohabitation law fails to acknowledge the circumstances of 3.5 million couples across the UK. The law needs to keep pace with the way people live today.’

The government’s consultation on reforming financial remedies on divorce and strengthening protections for cohabitants closes on Friday. In its own response, the Law Society expressed broad support for the reform package, but called for extra investment in legal aid to bolster support for children and domestic abuse survivors.