The Government has no clear public mandate for introducing automatic legal rights and obligations for cohabiting couples without their consent, Baroness Ruth Deech has told Justice Secretary Alex Norris after new polling found:
72% had heard little or nothing about the proposals;
- only 37% supported them after they were explained;
- 76% believe divorced and widowed people should be able to protect assets intended for their children and grandchildren, remain financially independent and stay outside the automatic legal framework.
- the public is evenly divided on whether reform is needed at all (42% say the current law is broadly adequate, 41% believe new rights are needed).
In a major submission to the Ministry of Justice's consultation A Fairer End to Relationships, the crossbench peer argues that if the Government concludes unmarried couples need greater legal protection, it should introduce a simple opt-in system rather than the Government's preferred approach of automatically imposing legal rights unless both partners successfully enter into a formal opt-out agreement.
The submission is backed by polling of 2,060 UK adults conducted by Survation, alongside a separate qualitative analysis of 717 responses to the survey.
What the Government is proposing
The Government’s consultation on plans to introduce new automatic legal rights and obligations for unmarried couples, closes this Friday, August 14.
Under the Government’s proposals:
- Couples who live together for three years, or who have a child together, would automatically acquire legal rights and obligations without their consent.
- If the relationship ended, either partner could ask the courts to make orders over homes, pensions, property and other assets.
- Couples wishing to remain outside the new legal framework would both have to agree to opt out, obtain independent legal advice, make full financial disclosure and sign a formal legal agreement.
- If one partner refused, the automatic legal framework would still apply.
- Qualifying cohabitants would be granted automatic inheritance rights when a partner dies without leaving a will.
The Survation polling suggests there is no clear public mandate for the Government's preferred approach. It found:
- 72% had heard little or nothing about the Government's proposals before taking part in the survey.
- Only 37% supported the Government's proposals after they had been explained, while 41% remained undecided or neither supported nor opposed them and 22% opposed them.
- The public was evenly divided on whether reform is needed at all, with 42% saying the current law is broadly adequate compared with 41% who believe new rights are needed.
- 47% believe the proposed framework should not apply if one partner wants to opt out, compared with 32% who support the Government's preferred approach of requiring both partners to agree to opt out.
- Respondents were also evenly divided between the Government's preferred automatic framework (43%) and a statutory opt-in system (43%).
- 76% say it is important that people who are divorced, widowed or have had a civil partnership dissolved should be able to protect assets intended for their children and grandchildren, remain financially independent and stay outside the automatic legal framework.
- The public is fairly evenly split on automatic inheritance rights for qualifying cohabiting partners: 33% support the proposal, 29% oppose it and 29% neither support nor oppose it.
- Among currently cohabiting respondents, 50% said new rights are needed. However, 51% said those rights should require both partners to actively choose them, while 52% said the framework should not apply if one partner wanted to opt out.*
*Based on an unweighted sample of 220 cohabiting respondents and should be treated as indicative
Baroness Deech, a former law lecturer, argues the findings show the public distinguishes between safeguarding vulnerable people and automatically imposing legal obligations.
Her submission says the Government has "not demonstrated that an automatic statutory framework is either necessary or proportionate" and warns that the proposals would create, in effect, a third legally recognised relationship alongside marriage and civil partnership, but without requiring the consent of both partners.
The submission also mentions concerns raised by former Justice Minister and current Shadow Attorney General Lord Wolfson of Tredegar, who told the House of Lords in a recent debate on cohabitation rights:
"The common thread running through our private law is not paternalism, but autonomy...The law provides a framework, but adults make the choice.”
It also highlights warnings from His Honour Judge Edward Hess, Deputy National Lead Judge of the Financial Remedies Court, who estimates the proposals could generate around 10,000 additional Family Court cases every year and criticised the Government's impact assessment as providing only "the most superficial and unsatisfactory analysis" of the likely impact on the courts.
Baroness Deech said:
“The polling shows the Government has no clear public mandate for automatically imposing marriage-like legal rights and obligations on cohabiting couples without their consent.
"The public supports protecting people who genuinely need it, but it has not endorsed the Government's preferred approach. Nor has the Government demonstrated that automatically imposing marriage-like legal rights and obligations is either necessary or proportionate. Instead, the polling shows people want protection to be balanced with choice and consent.
"Three quarters of the public believe that people who are divorced, widowed or have dissolved a civil partnership should be able to protect the homes, pensions and assets they have built up over a lifetime, preserve them for their children and grandchildren, remain financially independent and stay outside the automatic legal framework.
“Many people consciously choose not to remarry because they value both companionship and financial independence. They should remain free to make that choice, and the law should respect - not undermine - it."
"Marriage and civil partnerships are legal relationships that people freely choose to enter into. Under these proposals, similar legal obligations could arise automatically without either partner ever making that choice, and people may not even realise those obligations have been imposed on them.
“That would represent a profound constitutional change.
"There is a better alternative. If the Government concludes that additional legal protection is needed, it should introduce a simple statutory opt-in system that allows couples to choose for themselves whether they wish to acquire those rights and responsibilities.
"Ultimately, the issue is not whether the law should provide additional remedies. It is whether significant legal rights should arise because adults choose them, or because the State presumes they intended them. I believe those rights should continue to be based on informed consent. It's your relationship, your choice."
The Survation survey also generated 717 written comments which reinforced the polling findings.
Analysis by Survation found that 41% of valid responses spontaneously raised concerns including on consent, legal certainty and Government interference in private relationships.
Many respondents argued that if couples wished to acquire marriage-like legal rights they should actively choose to do so, rather than have them imposed automatically.
Comments included:
"I think the new proposed laws are extremely unfair. If I wanted these rights with my partner, I would get married. I've chosen not to get married to protect my financial assets in the event of a relationship split.”
"My ex-partner was highly abusive. I was also the breadwinner and he would have been able to claim what he had not contributed towards. It's too risky. If we wanted to share legally, we would marry."
"If people wanted to get married, they would. Marriage comes with both privileges and obligations… The Government has no business deciding they already have."
"I cohabited with my children's father and wasn't covered. But.. if I were to cohabit now, I would want to know my assets would go to my children."
"If one person comes into the relationship with significant assets and they break up, the other should not be entitled to a lifetime's worth of savings."
"Cohabitation is a personal choice... Government should not enforce a law that might favour one against the other."
Baroness Deech's submission concludes that Parliament faces "a constitutional choice" and makes three principal recommendations:
- Reject the Government's automatic opt-out model.
- Introduce a simple statutory opt-in registration scheme founded on informed consent.
- If Ministers nevertheless retain an automatic framework, allow either partner to prevent it applying by giving notice that they do not consent.
The Ministry of Justice consultation, A Fairer End to Relationships, closes on August 14.
People can read Baroness Deech's submission, the independent polling and find out how to respond to the consultation at:
www.YourRelationshipYourChoice.org.uk
