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Interview by Hugh Logue, Legal News Editor
Last year Baroness Deech gave a series of six lectures on family law at Gresham College in London which were reproduced in Family Law. The topics of her lectures ranged from cohabitation to cousin marriages and her comments sparked national debate when they were widely reported in the media.
Baroness Deech lectured in law at Oxford University for many years before serving as Principal of St Anne's College between 1991 and 2004. She is the Chair of the Bar Standards Board and also served as Chairman of the Human Fertilisation and Embryology Authority between 1994 and 2002 and was appointed to the House of Lords in 2005.
Her lecture on cohabitation caused controversy after she described Lord Lester's proposals to provide greater rights to cohabitants when splitting up as "a windfall for lawyers but for no one else except the gold digger" and that it "retards the emancipation of women".
At her home in Oxford, Baroness Deech discussed her views on cohabitation when she spoke to me in a personal capacity and not as chairman of the Bar Standards Board.
"I had an overwhelming response from the public about cohabitation, not wanting a new law. Some rather unpleasant ones from men to the effect: 'If you bring in a cohabitation law, well I'm going.' And also from women: 'Why should I share my assets with this man who has refused to marry me?' I maintain that women are adults who can and should take care of themselves. But children, of course, must be supported. In relation to the proposed new cohabitation law I can't see why a man should have to give a woman money because he has lived with her for a while. I think it would put even more men off commitment and they will be open to blackmail. I think it would also be unpleasant for a woman who moves in with someone, hoping he will marry her and he does not, and then at the end she finds she has to share her assets with him. They would be spending too much on costs. It would be a busy new field for lawyers. Given the uncertainty of the existing matrimonial financial provision law, why would you want to apply that same law to cohabiting couples, with the consequence that they too would litigate about the contributions made and the standard of living.
Baroness Deech uses the tale of three imaginary sisters to explain the unfairness of divorce law. One of the sisters is a beautiful model and she lives with a very rich footballer. The second remains at home and looks after her father, who has Alzheimer's. And the third one marries a clergyman. When the footballer breaks up with his wife or girlfriend, she will receive an enormous sum. The sister who cares for her sick father will get nothing when he dies if he does not make a will in her favour. If the clergyman's marriage ends his wife will get practically nothing. This, she says, illustrates how the law rewards those who manage to live with a very rich man, regardless of contribution and childcare.
"Take the case of Heather Mills and Paul McCartney. I am sure she is a very worthy person. She was awarded £24m for being married to him for three years; their baby Beatrice was to be maintained at a cost of £65,000 pa plus school fees. Included in this settlement was £50,000 a year for Heather to give to charity, and I thought giving to charity meant you gave out of your own pocket. This level of settlement is now not unusual where the means allow. A woman who has never worked may be rewarded with a sum that most women will never see in a lifetime of salaried employment. We have a system that would be condemned as unfair if its principles underlay social security or tax. We have a system that can shower wealth on a few divorced women and leaves the rest to fend for themselves. This will be true of cohabiting couples if that same regressive law were to be extended to them. I spent much of my career teaching women with the aim of encouraging them to extend themselves intellectually and take care of themselves. I am afraid the message that goes out to young girls now is: 'If you can't be a celebrity yourself, you had better find one to live with.'"
There has been considerable concern amongst family lawyers over the last few weeks following the Legal Services Commission's legal aid tender round resulting in the cutting of almost one out of every two firms that applied. The Law Society is awaiting the judgment of their judicial review to quash the family law tender round and extend the current family law contracts. I asked Baroness Deech if she was concerned about the whole debacle.
"Yes, it is absolutely deplorable. And if it means that many people of very modest means can't get legal advice and help, that is contrary to international covenants, the rule of law, and probably the Human Rights Act. To deprive people of legal advice is really shocking, and the ones who will get harmed are principally the children... this is the wrong way to tackle the expense of family law. It would be preferable to make the law simpler."
A controversial theme that keeps remerging in my interview with Baroness Deech is that she believes that single parent families are not conducive to a healthy society.
She continued: "In relation to children, by and large, the problems arise from dysfunctional families and families that split up. And as long as no one is prepared to talk out about that, then of course it is going to continue to be very expensive. The battered and abused babies reportedly are nearly always living with a single mother and a boyfriend who is not the father of the child. The social workers take the blame, but that situation is a risky one for children. In the past I have been attacked for saying it, but the children are much less likely to suffer abuse if they stay in a stable, married family for their early years. So we ought to be encouraging that."
"Relative strangers have no compunction in saying to you: 'Don't eat hamburgers. Don't eat chips. Don't have another glass of wine. No smoking here. Go and take some exercise. Lose weight.' If you work with children, you have to be on a register; you can't take photos of children or drive other people's children to a football match without being checked out. Yet the behaviour most likely to make society unhealthy, that damages these children more than anything else, is their father - it is usually the father - walking out and leaving them with no support. Nobody says a word about that. It's acceptable. What is the point of having all these expensive systems for the protection of children, and their healthy lifestyle when there is one outstanding element damaging children which is regarded as a no-go area?"
Are her views against reforming cohabiting laws and the injustice of walking out on their families not inconsistent? Surely it would better for children if the fathers in cohabiting relationships were forced to provide similar support to their partner as husbands who divorce their wives?
"The situation of women is distinct, but the children must certainly have complete rights to claim from their father under the Children Act 1989. The failure of the Child Support Agency is exceptionally sad. I recall a protest march in London a few years ago on a Valentine's Day, of fathers with their second wives and partners protesting about having to make payments under the Child Support Agency. I deplore the fathers, married or not, who exit and leave their children unsupported, although I know there are some who are denied contact by mothers. The claims of women are on a different basis. So I am not being inconsistent. I am pointing out that we are all encouraged to lead healthy lives and take care of ourselves, but we keep silent about that particular failure. And friends have no hesitation in saying to me, 'Don't drink so much. Don't eat bread. Come on, take exercise.' But if you know a man who has just left his family, you would not say, 'Hugh, how dare you walk out on your wife? What have you done? Go back. You have ruined her life and your children's lives.' You know, you don't talk about that in polite society. Instead people say: 'Oh, we are supportive. Move on with your life, etcetera, etcetera.' We don't talk about causes or the effects."
What if a woman has young children and she has not been able to gain a job skills because she has been looking after them. As a result she is not in a good position to go out and get a job. Should she not also be supported by the man who walks out on her?
"This is a very complex question. In the families you describe there is probably no wherewithal in any case. Cohabitation is more concentrated amongst the less well-off, and if the father is not reasonably well off, they are likely to turn to welfare. Secondly, we, as a society, have pulled the rug out from under the feet of such women. Fifty years ago, divorce was much more rare. So a woman could, with confidence, give up work, raise her children, knowing that it was extremely unlikely that she would be left. That is not the case today. There can't be a woman in the country who does not know that relationships break down and that she is putting herself in a risky position if she is not able to keep herself. Thirdly, given the situation we are in, we should have much, much more day care and nursery provision, an issue I was once deeply involved in for Oxford University parents. Far too little has been done on that. We should encourage and make it more possible for women to go back to work.
"But it makes no sense to put the entire burden of caring for a jobless woman on a particular man who may have no money, or he may be well off, in which case, she does well out of it. He may say: 'It's not my fault. I would dearly love to be there looking after my children. She will not let me.' The position that you are putting forward, it hasn't worked, has it? Because there are hundreds of thousands of single mothers who rely on welfare. It is no good suggesting that the law should force their partners to take care of the women. They won't or can't. I am suggesting something new."
The think-tank Civitas produced a report in May 2008, Second Thoughts on the Family, which correlated poverty and non-marriage, showing that the areas in Britain with the highest proportion of cohabiting parents were also the most deprived. By contrast, marriage is concentrated in areas with high numbers of middle-class families. I put it to Barnoness Deech that it is deprivation, not cohabitation that has lead to family breakdowns.
"Cohabiting parents are five times more likely to break up before the child is eleven than married parents," she responded."Even the poorest married people are more likely to stay together."
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