Cohabitation Bill [HL] — Second Reading

– in the House of Lords at 12:14 pm on 13 March 2009.

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Moved by Lord Lester of Herne Hill

That the Bill be read a second time.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 12:18, 13 March 2009

My Lords, I am delighted that the Attorney-General will reply to the debate although the Bill is not her direct responsibility. Before she joined the Government, the noble and learned Baroness had a distinguished practice at the Bar, specialising in family and children's law, and therefore has great knowledge of the problems that the Bill is designed to address. She may recall that during the passage of the then Civil Partnership Bill, I pressed for cohabiting couples to be included, as they had been in my Private Member's Bill. The noble and learned Baroness expressed sympathy but explained why it fell outside the scope of that Bill. As a result, the issue was referred by the Government to the Law Commission, on whose report the Bill is largely based. I am grateful to the Attorney-General and Ministry of Justice officials for meeting us to discuss the Bill, and I look forward to meeting the noble Lord, Lord Bach, on his return, as he is the Minister with responsibility for the matter in this House.

It is a principal aim of family law to protect the most vulnerable family members when relationships end. In one important respect, our family law fails to do so. Cohabiting couples—families made up of two adults living together in a loving relationship—are not recognised under English law as a family when their relationship breaks down, but rather are treated as two unconnected individuals. The division of their property is based on any agreements that exist and financial contributions made. The courts can take no account of what contributions each party made to the relationship by caring for the family or home, or sacrificing a career in the interests of the other party. Nor can English courts consider the needs of either party. Unless couples have taken steps to agree their legal position during their relationship, which is very unusual, the outcome under English property and trust law often bears no relation to what most people would agree would be a fair outcome for both parties.

As a result, many adults and their children are left in poverty at the end of a cohabiting relationship. Unless a scheme is put in place which allows a fair arrangement to be reached between former partners, the burden of providing for them will continue to fall on the state and the taxpayer.

The social problems with which this Bill is concerned are well illustrated by the case of Burns v Burns, where a couple had lived together for 19 years, had two children and had pooled their resources. When their relationship broke down, Mrs Burns discovered that she was entitled to nothing. She was not entitled to an interest in their home because they did not own it jointly. Because she was not married, the court could not consider what she might reasonably need or expect.

The Burns case was decided more than 25 years ago. In spite of an enormous increase since then in the number of cohabiting couples, the outcome would be virtually unchanged if the case were to reach the courts today. English family law has not kept pace with developments in society, and only Parliament can come to the rescue.

In their evidence paper, Families in Britain, published in December, the Cabinet Office and Department for Children, Schools and Families wrote these wise words:

"we see an increasing range of family structures, to the extent that there is arguably no longer a one size fits all family in Britain today. But this is diversity and not decline. Warm, loving and stable relationships matter more for our happiness and wellbeing than the legal form of a relationship. And while marriage will remain of central importance, the reality in many people's everyday lives is that more and more families experience a range of family forms throughout their life time. There is no single family form that guarantees happiness or success".

As the Government recognise, society is increasingly made up of non-traditional family units. The Government responded positively and creatively to the needs of non-traditional families by introducing the Civil Partnership Bill in response to my Private Member's Bill, and in reworking—with, if I may say so, great help politically from the noble Baroness, Lady Morgan of Huyton, whom I am delighted to see in her place—my Forced Marriage (Civil Protection) Bill. I hope that they will be able to do so again by supporting and where necessary improving this Bill.

I am grateful to Stephanie Grundy, who has once more skilfully drafted a Bill for me, and I am especially indebted to Resolution, an association of 5,500 family lawyers, for its work on this Bill for more than a year, and for bringing to life the problems that it seeks to address. Resolution's members are frequently faced with clients who, having just come out of a cohabiting relationship, have been left destitute because of a lack of protection under the current law.

Recent research showed that a third of children live in poverty. Children's financial well-being is dependent on that of their parents. The risk of poverty is exacerbated for children of separating cohabitants because of the current lack of financial protection for dependent partners. As 44 per cent of all children in England and Wales are born to unmarried partners, one important way for the Government to reach their target to alleviate child poverty is to tackle the situation of their unmarried parents. Gingerbread, the charity for single-parent families, told us:

"Our own experience in assisting single parents has left us in no doubt that the current law is uncertain, complex and frequently produces unfair outcomes, particularly where a couple have had children. We consider that the case for reform is overwhelming".

The Bill has authoritative support. It is largely based on the report of the Law Commission for England and Wales, which was the product of two years' work and a published consultation. Before publishing this Bill, we too conducted a public consultation. There were 197 responses, including from the Law Society of England and Wales, the Law Society of Scotland, the Family Division of the High Court, the Family Law Bar Association, the Association of Women Solicitors, Families Need Fathers, Refuge, Rights of Women, Stonewall, many academic experts, and individual family solicitors, all of whom supported reform. I have placed the results of that consultation in the Library.

The Bill has broad public support. The 2008 British Social Attitudes report stated that almost nine in 10 people think that a cohabiting partner should have a right to financial provision on separation if the relationship has been long term, and includes children, or has involved giving priority to one partner's career over the other's.

Mary Creagh MP, the admirable Labour MP for Wakefield, is a strong supporter of the Bill and has agreed to be its midwife in the other place, drawing on her experience of the problems faced by her constituents. Several Members of this House who cannot be here today have written to express their support, including the noble Baronesses, Lady Howe of Idlicote, Lady Stern, Lady Buscombe and Lady Flather, the noble Lord, Lord Pannick, and my noble friends Lord Wallace of Tankerness and Lord Goodhart.

I also greatly welcome the support of the Southall Black Sisters. They believe that the Bill will have particularly important implications for women of ethnic minorities, especially Muslim women. It will address the problem of those women who, having been party to a religious wedding ceremony, believe that they have the civil rights of a married person. It is only when their relationship breaks up that they find that their marriage was never registered and that they have no rights. The Bill would also deter men from having polygamous marriages, which are illegal under English law.

Since we launched the Living Together campaign in July, my office has been inundated with letters and e-mails from individuals who have been adversely affected by cohabitants' lack of rights. One former cohabitant told us:

"By the time I realised I had no rights, I was in too deep—I had sold my house and given up my job to support my ex, by taking care of our children and helping out with his business. When I found out we were not common law husband and wife as I had assumed, I pressed for us to marry—to no avail. Since our split I have had to rely on government handouts and support from family whilst I try and rebuild my career and my new life as a single parent. I suppose the error I made was in trusting someone I loved".

We all want to encourage stable and committed relationships. Some suggest that by validating cohabiting relationships the Bill would undermine marriage. On the contrary, reform would remove the current incentive to cohabit to avoid the financial implications of divorce. Cohabitation rates are rising and marriage rates are falling, and research indicates that this trend will continue, whether or not the law changes. This is happening in the context of the current law, which denies cohabiting couples legal rights and protection.

Other Commonwealth countries give similar protection to cohabiting couples, including Australia, Canada, New Zealand, and Trinidad and Tobago. The Family Law (Scotland) Act 2006 updated Scottish law to introduce new rights for cohabitants. It is not identical to the scheme in the Bill. For example, the Scottish scheme does not define who is a cohabitant, leaving it to be decided by the courts; and it contains no opt-out scheme. Few cases have come to court, but statistics produced by the General Register Office for Scotland indicate that the legislation has had little effect on the number of marriages in Scotland. It would be wrong to postpone legislating for England and Wales under a different scheme.

I am strongly in favour of marriage and am blessed in having been married for some 37 years to a loving and caring wife. She said this morning that she thought it was 38 years or even longer—poor woman. In those countries which give legal protection to cohabiting couples and their children, there is no evidence of any resulting decline in marriage rates. People marry for religious, social and emotional reasons, and these personal choices will remain unaffected.

The Bill does not grant the same rights to cohabiting couples as those enjoyed by married couples and couples in civil partnerships. Cohabiting couples will not benefit from tax and pensions advantages unless they marry or enter into a civil partnership. The Bill maintains several important distinctions between how a court must deal with an application for financial relief on the breakdown of a cohabiting relationship and how it would deal with an application upon divorce. There would therefore remain considerable practical advantages to a couple deciding to marry or enter into a civil partnership. In this way the special place of marriage and civil partnership in our society is maintained.

The Explanatory Notes are available in the Printed Paper Office. I shall therefore be brief in describing the Bill's contents. It gives cohabiting couples limited rights to make a claim for financial provision at the end of their relationship, through either separation or death. Part 1 determines to whom the Bill applies. It will not affect all cohabitants, but is limited to those who have demonstrated significant commitment to each other, either by having lived together for two years or by having had a child together. Two years was the period most strongly supported in our consultation, is consistent with other legislation, which grants rights to cohabitants after two years of living together, and with the Law Commission's recommendations, which suggested a minimum period of between two and five years. There is of course room for debate as to the appropriate period during which a couple must live together before they incur rights and responsibilities under the scheme. The period chosen determines eligibility to be within the scheme.

The mere fact of coming within the scheme would not mean that the court would make financial provision. It would take into account the period of cohabitation in deciding whether to make an award. Where this was very short, the court would be unlikely to do so, unless there were other highly persuasive circumstances, such as a significant financial contribution by one party to the other. However, we will attend carefully to the views of noble Lords as to whether we have got the balance right or whether a longer period would strike a fairer balance. In other words, on this we are agnostic as always, seeking to achieve a Bill which the Government, who are the masters, can support.

Part 2 gives former cohabitants the right to apply to a court for an order when their relationship breaks down. The court may make an order if it considers it just and equitable to do so, having regard to all the circumstances. This is not the approach recommended by the Law Commission, which advocated a system of compensation for economic disadvantage suffered as a result of the relationship. In the experience of the practitioners who advised me, the model in the Bill is preferable because it allows for all the circumstances of an individual case to be considered, including any economic advantage gained or disadvantage suffered, together with factors such as the needs of the parties and their children, and the commitment or lack of commitment between the parties. A compensation scheme fails to recognise the modern family and encourage social responsibility, which this Bill is designed to achieve. That model assumes you can live with someone for decades without taking on responsibility for those with whom you live. No one is better able to tell us about this than the noble and learned Baroness, Lady Butler-Sloss, a speaker in this debate. Family lawyers and courts are familiar with a discretionary approach, which enables the courts to tailor awards to deal with a wide range of very different family situations.

Part 2 also contains provisions allowing couples to opt out, so that the rights contained in the Bill would not apply to their relationship. This maintains the essential freedom of personal choice, allowing couples to regulate their own affairs in accordance with their wishes.

Part 3 allows cohabitants to take out life insurance in respect of each other's life and to register each other's death. Surviving cohabitants already have the right to make claims against their deceased cohabitant's estate. This Bill amends the definition of cohabitant in existing legislation to cover cohabitants who have children together. It also extends to cohabitants the right to claim for bereavement damages. I commend the Bill to the House.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour 12:35, 13 March 2009

My Lords, I thank the noble Lord, Lord Lester, for introducing this Bill and for his detailed explanation. I believe it to be very necessary. Increasing numbers of people now cohabit. More than one-third of people have cohabited in the past, as did I many years ago, although we later married. About 11 per cent of people cohabit today. Marriage rates are falling but cohabitation is increasing and many such couples have children. But current law gives such couples no rights if the relationship terminates. They are treated as unrelated individuals, which means that many women and children fall into poverty at the end of a relationship.

Many people in such relationships do not realise that that could occur. They think that there is such a thing as common law marriage, but there is not. The Bill is an attempt to provide protection for vulnerable people, and our law should evolve to meet the needs of a changing society. As we have heard from the noble Lord, Lord Lester, there is evidence of strong support for such a Bill. Many people believe that a cohabiting partner should have a right to financial provision if the relationship has been long-term, includes children or has involved prioritising one partner's career over the other's career. There could also be a situation in which one partner had been the carer of the other.

The Bill will not undermine marriage or civil partnership. It has not done so in countries such as Australia where similar legislation has been introduced. But it will provide some financial protection for otherwise vulnerable people. The courts will be able to make a financial award only if it is fair, thus making sure that the welfare of children is given priority. That could include child care costs to enable a primary-carer parent to work. There would also be new rights for the surviving partner in the event of the death of the other. The couple would have had to have lived with each other for a minimum of two years or have a child together. There would also be a right to opt out after appropriate legal advice.

As we have heard, the Family Law Bar Association is in favour of this Bill. It categorically states:

"The law as it currently operates is not only unable to provide fair solutions for cohabitants at the end of their relationship but also lacks coherence, can be unpredictable and is expensive to operate, thus further reinforcing the difficulties faced by economically weaker cohabitants when their relationships fail".

This is humane and worthwhile legislation which I urge the House to support.

Photo of Baroness Deech Baroness Deech Crossbench 12:44, 13 March 2009

My Lords, I have been writing about and studying this topic for more than 30 years and I welcome the chance to address the realities of the issue. This Bill, I have concluded, is wrong in principle and in practice and could damage the prospects of those it wishes to assist. In sum, cohabitation law retards the progress of women, disrespects the relationship, is a recipe for instability, takes away choice, is too expensive and extends an already unsatisfactory maintenance law to another large category. It will certainly be a charter for the footballer's girlfriend but not for the ordinary working woman.

My issue of principle is one of human rights. The convention grants respect for private life, which is denied by the way in which this Bill would impose a complex legal structure on people who have avoided being bound. There is a human right not to be treated as married; not to be forced into a legal structure.

The issue of practice is the complexity and unfocused nature of the assessment and eligibility criteria. At a time when legal aid in family law cases is being cut, so that child abuse cases and ancillary relief will be damaged, and the entire family law Bar is protesting about this, how can it be contemplated that more legal aid resources will be made available for cases involving very little money and a great deal of ill will? No doubt practitioners who are unable to continue with legal aid work will turn to private practice in the few cohabitation cases where there is something worth fighting over.

Your Lordships will know that the Law Commission recommended a law for cohabitants, but that proposal awaits the completion of further research on how it has worked in Scotland. This Bill, however, is not the Law Commission one; it is far wider. Clause 9 lists, for the purposes of assessment of the orders that might be made, every single issue that might be relevant, basing itself largely on Section 25 of the Matrimonial Causes Act. It is, if anything, even broader. It will direct the court to test the degree of commitment of the couple. Research tells us that cohabitants have different perceptions about their commitment to each other. In particular, the man normally does not accept commitment until he has made a clear decision about their future together, whereas the woman will see it in her moving in. I could illustrate the same points of difference about every subsection.

Suffice it to say that in other jurisdictions these cohabitation laws have been criticised for forcing a retrospective look at something that is over, something that has no one meaning for couples and, according to a leading American textbook, often leads to fraud and uncertainty. In the US, the number of states legislating for "common law marriage" has fallen back from two-thirds to 12 because of the difficulty. However, the American approach is at least based on a freely chosen contract between two people, not an imposed legal structure.

There is no ceiling in the Bill on the amount that might be awarded. On the one hand, it might exceed half of the relevant assets; on the other, it might ignore the actual contribution made by one of the parties to the purchase of property, overriding trusts law. There is no clear direction in the Bill to the courts as to what the scheme is intended to achieve. Clause 1 mentions basic protection, but the lack of structure leaves the outcome wide open. This will be even worse in practice than the finding and applying of principles for matrimonial division of assets, which is notoriously difficult and expensive.

Your Lordships may be aware that case after case of asset splitting on divorce has reached your Lordships' House in the forlorn hope of settling the principles once and for all. The experienced family judge, Lord Justice Thorpe, has said that the judges deplore the lack of clear rules and principles in this field. The judgments have not produced greater certainty or predictability and it is the lawyers rather than the litigants who are the principal beneficiaries of these decisions. There are enormous and disproportionate costs in contested applications—for example, the case of Piglowska, where the costs exceeded the assets—and the law for wives is strongly marked by paternalism because the judges have moved away from the principles of the statute law.

So this is the wrong law to apply to a fresh set of applicants, and the drafting in the Bill gives nothing but confused messages. Experience has taught us that phrases such as "self-supporting" or "reasonable needs" are ignored once the antagonists set to. The question of why one adult should support another after their relationship has ended is so controversial that the Government shied away from it by not bringing into force a divorce reform Act in 1996. Do we really want a law where the mistress of a rich man may get £5 million after three years of childless cohabitation, mirroring what happened in the Miller case? While most cohabitants have very little, must their assets be wasted while the courts argue about the principles to be applied?

According to government statistics, the average duration of a cohabitation is two years before ending or going on to marriage, and cohabitants are less likely to pool their assets than are the married. Every new law, it is said, gives 10 good years of work to lawyers; this one will certainly be a bonanza for them. Incidentally, it is the lawyers' group Resolution—formerly known as the Solicitors Family Law Association—that is behind it. Even the opt-out provision in the Bill is too complicated, requiring separate, and no doubt expensive, legal advice for each party. One can readily foresee the growth in cases where there is a dispute about whether a couple lived together as such, whether it was two years, whether they opted out, what the degree of commitment was, and their relative needs.

English law in this field needs to be brought into line with those jurisdictions where adults are treated as such and, indeed, encouraged to make binding prenuptial and postnuptial contracts. If these were added to the already existing law which gives cohabitants their remedies it would be clear that there is no need to change the law. Cohabitants have the law of trusts where they have jointly contributed to property, which is generously interpreted, and child support is governed by Schedule 1 to the Children Act 1989.

The issues of rights and freedoms are even more compelling against this proposal. Professor Cretney, a former law commissioner, has written that it is hard to understand why those cohabitants who express distaste for marriage and all its legal trappings should want the benefits of a comparable legal regime, with all the financial and emotional costs of litigation, and that it is possible that the scheme will become the instrument of exploitation and harassment. It is difficult to understand what the hardship is in living with someone else and being kept or sharing costs in that period. While the courts may eventually throw out a claim, behind that will be the many cases where one undeserving party gets money from the other by threat of going to court. The greatest awards will go to women who have lived with rich men and done the least work, while the ordinary, possibly deserving, will secure nothing except legal bills.

Childbearing has not been found to be an indication of longer stability in cohabitation. Only 35 per cent of children born to cohabiting couples will live with both parents until they are 16, according to Ermisch. That is the same in the US and in Europe. Yesterday the noble Lord, Lord Laming, reported how much children need both parents. In the UK, cohabitants with children are less likely than those in other jurisdictions to marry.

It is already said to be the case that men are deterred from marriage by the high cost of divorce. One can readily see that they will be deterred from commitment—from sticking around at all—by the cost of cohabitation, or that they will leave the union shortly before the magic two-year limit is reached. In sum, it is illiberal to impose on couples an intrusive contractual obligation not freely entered into, and it will encourage inherently more unstable relationships.

I am, however, not putting out a moral message; far from it. The message is one of freedom of choice and respect for rights. Why should we make them pay when young educated people live together, or when a young woman with a good career is deserted by the young man who she had hoped would marry her but instead demands money from her? What are the expectations? Whatever they are, cohabitants know that they are not married, and they have chosen to avoid it. There is nothing to stop them marrying, for divorce is easily enough obtained if one is already married. If they are dissatisfied, why not marry in order to obtain marital rights? Couples may be trying out their relationship before marriage, and we should not impose the penalties of a failed marriage on those who were experimenting in order to avoid this outcome. There should be a corner of freedom where couples may escape family law, with all its difficulties. Cohabitation is not marriage, now or historically, and people need the freedom to try alternative forms of relationship, not to have one imposed on them, especially one that treats women as perpetual dependants.

We are inconsistent. On the one hand we hear that women should expect half of all top jobs and equal salaries; on the other, we hear that a woman's job is to stay home and that, whether she has children or not, living as part of a couple is somehow damaging to her career prospects and she should be compensated for merely sharing her life for a while with a man. As long as the law treats women as dependants who have to be kept, that is an obstacle to equal treatment at work. It is a free choice whether or not to stay at home and care for children, and we all have to do housework whether single or cohabiting. "Giving up a career" is, in most cases, a myth; most people abandon it with a sigh of relief for something more enjoyable.

What message will the Bill give to young girls contemplating further education when the law gives huge handouts to women who have been fortunate enough to live with a rich man for a short time while others, equally deserving, will get nothing at the end of a relationship because there is nothing available to be shared? Our law labels women as worth what their man is worth, once and for all. Nothing is more incomprehensible to the reluctant payer than maintenance, which is based not on morality or guilt or desert but simply on what he is worth.

Maintenance principles have not been reformed by Parliament for decades and have floundered ever since no-fault divorce was introduced in 1969. We are now in a society where the majority of women, even with children, work or are expected by the Government to work; where they claim equal pay and opportunities; where they have contraception; and where more women enter higher education than men. The message given by the Bill, however, is that finding a well off man is an alternative career to one in the marketplace. It will be a bonus for the companions of the rich, and a delusion for those who live with a poor man.

In sum, the Bill would be a windfall for lawyers but for no one else except the gold-digger. It would be bad for Bridget Jones; bad for commitment, stability and children; and a breach of the right to private life and the freedom to marry or not. It would produce cases of expense and uncertainty and create another class of people who just missed out on eligibility, whether because they were sisters or had not lived together for long enough. It would rarely produce sufficient assets, except in the wealthiest of cases. It would open the door to more nastiness and harassment at the end of relationships.

The law in this field is already satisfactory, and all we need to do is encourage couples to set out their wishes in a contract. I hope that the Bill never reaches the statute book.

Photo of The Bishop of Winchester The Bishop of Winchester Bishop 12:53, 13 March 2009

My Lords, I congratulate the noble Lord on his persevering industry, and that of the Odysseus Trust and Resolution, in bringing forward yet again a substantial Bill in the hope of pioneering a path which he may persuade the Government to follow.

In February 2004 the General Synod of the Church of England passed the following two-part motion:

"That this Synod ... a) strongly reaffirm that marriage is central to the stability and health of human society and warrants a unique place in the law of this country; b) recognises that there are issues of hardship and vulnerability for people whose relationships are not based on marriage which need to be addressed by the creation of new legal rights".

It is these issues of hardship and vulnerability of people to whom they are real which, I confess, I did not hear attention given in the speech of the noble Baroness, Lady Deech, just now. It is a privilege as ever to follow her, and today it has been a particularly interesting experience to do so. I shall not try to take up her points one by one, not least because the noble Lord, Lord Lester, is much more qualified than me to do so. However, I anticipate that he may pay particular attention to Clause 8(3) in his Bill, which seems to undermine a number of sentences in the noble Baroness's speech.

I voted for that motion in the Synod in February 2004 and I am therefore here today as a welcoming, yet critical, friend to the noble Lord's Bill. Only time will tell whether he thinks I am more the one than the other. I share to a considerable extent the concerns of those who fear that any Bill of this kind will undermine the fundamentally important institution, the "honourable estate", of marriage. I guess that, like the noble Lord, I should declare an interest, having been most gratefully married for a few years longer, I hear, than he has. Marriage is important not only for married people, their children and their wider families, but, as the first leg of the motion affirms, to society as a whole. I also share the concerns of those who fear that giving any kind of legal status to cohabitation or seeming to do so—the Bill, as the noble Lord said, avoids the opting-in which would be such legal status and so also the language of contract to which the noble Baroness referred—will encourage people to think that it is a healthier and more secure way of having a relationship, which it mostly is, and act as a further disincentive to people to marry, at a time when the costs that many people think that they will have to incur are clearly disincentive enough.

In supporting proper provision for those who face "hardship and vulnerability", which are the General Synod's words, when cohabiting relationships break down and especially, but not only, for the children of and in such relationships—there is no doubt that many do suffer such hardship—I shall be on the alert for points where such compassionate and legitimate provision may run the risk of creating disincentives to marriage or of giving a status to cohabiting relationships that may weaken the ambition and desire of the large proportion of people who begin by cohabiting to move on into marriage.

I support the principle of the Bill, too, in the face of these concerns that I share, because I do not believe that people should be pressed into marriage or into the very different civil partnership by fear of any kind. Nor can they be so pressed at a time when some commentators are describing marriage as a "luxury item"—what a terrible set of words to use about it—and, more importantly, when most are noting that the largest distinction between those who are marrying today and those who are not marrying but cohabiting is not philosophical or principled but the latter's poverty, lack of education and, often, unemployment. That is another critical question for the noble Baroness, Lady Deech.

On the whole, the Bill succeeds in providing, and in limiting its provision to, what it calls at its beginning "basic protections". I welcome for that reason the fact that it has not gone down the road of making available some sort of opt-in to cohabitation, some kind of heterosexual equivalent to civil partnership. I welcome, too, the principles expressed in Clause 8 in the context of its provisions for the making of a financial settlement order, which state that the parties,

"should be self-supporting as soon as possible", and that an award,

"should not exceed the applicant's reasonable needs".

The Bill is not therefore, it seems, an offer to those whom the noble Baroness, Lady Deech, described as "gold-diggers".

I strongly welcome the unequivocal placing first in Clause 9, entitled "Matters to be considered", of,

"the welfare of any relevant child".

I am a good deal less sure about, and hope to explore at a later stage, Clause 9(k), 9(m) and especially 9(h), which seems to move beyond the relief of hardship and, therefore, also beyond Clause 8(3)(b).

I have a similar anxiety about the provisions for insurance in Clauses 16 and 17, when, by definition, a cohabiting relationship has no specific expressed commitment, at any rate at its beginning. I am concerned, too, about the right given to register the death of a partner, although I realise the real hardships at the point of bereavement which, properly, that element of the Bill is designed to meet. I wonder whether that is the point of the noble Lord's recognition that there may be discussions to be had about the length of time that people take to qualify, and even whether there may be different parts of the Bill that deserve different lengths of qualifying time. On both insurance and the right to register the death—and it is not clear to me whether that is a unique right that excludes others—there may be particular questions about the rightness of two years as a qualifying period.

I am simply puzzled by Clause 12(4), for is it not against the law for someone to be in a cohabiting relationship of the sort that I think the Bill has in mind when under the age of consent? I am well aware of walking into these questions with so many distinguished lawyers present when I may have misunderstood that clause.

I hope that at a later stage we can explore the appropriateness of what is included and excluded by Clause 5, on "The prohibited degrees of relationship", which elucidates Clause 2(3)(b). Strictly speaking, the Bill shares the logic of the Civil Partnership Act of including reference to the prohibited degrees when it does not make the assumption, present among the commitments explicitly undertaken on entry into marriage, that the relationship is sexual. I shall take up that point in detail and express my concern about what is included.

It seems to me that both parts of Clause 5(4) are an innovation and one that must be deeply unwelcome. Of course it is in the nature of cohabiting relationships that they cannot be regulated in these regards as marriage and then civil partnership, modelled at this point upon it, are regulated. As I read them, the two provisions in that subsection surely may be taken to encourage relationships, or at least to permit them, that fall outside the prohibited degrees for which both civil and ecclesiastical law allow no such exception. The noble Baroness, Lady Deech, also made passing reference to what is excluded from that clause. I much regret that this Bill, which, like the Civil Partnership Act, makes no assumption on its face that the relationship in view is a sexual relationship, has not taken the opportunity to begin to make provision for those, perhaps particularly those in the relationships named in Clause 5(1), who live for some time and sometimes for a very long time as a household and who suffer when, for whatever reason, they are parted or decide to move apart. Many of us remember a particularly dramatic day in the passage of the Civil Partnership Bill in this House, when for a while the House accepted that argument.

With those questions, I support the Bill in principle as a proper attempt to make provision for people who should not be left defenceless in the face of hardship—I use both the words "defenceless" and "hardship" advisedly—when relationships which they may have thought guaranteed them some security come to an end. Of course it remains important, whether or not the Bill becomes law, to persevere in looking for ways to help so many cohabiting people realise that they are so defenceless.

Lastly, and here I must declare an interest as my wife is a trustee of Relate, it remains important to make counselling and mediation vastly more accessible in every community and attractive to people of all sorts.

Photo of Lord Harries of Pentregarth Lord Harries of Pentregarth Crossbench 1:05, 13 March 2009

My Lords, it is a pleasure to follow the right reverend Prelate, who has done so much to support the institution of marriage within his work in the Church of England. Like him, I pay tribute to the noble Lord, Lord Lester, for giving us an opportunity to discuss this important issue.

Whatever the argument about this particular Bill, there is widespread agreement that when cohabiting couples split up, the children of such a union must not suffer financially and that proper laws must be in place to ensure that. This, for example, is the position of the Church of England, as expressed in the General Synod resolution and in its response to the Law Commission consultation on the subject. The category "cohabiting couples who have children" accounts for a good number of people. In 2006, for example, there were 1.49 million dependent children of cohabiting couples.

However, there the agreement seems to stop. I refer not so much to what the right reverend Prelate said today in his own person, but to what the Church of England has said through its official documents. It seems reluctant to support the Bill as it now stands because, in addition to making provision for children, it creates, in its view, a new category of relationship—those who have lived together for two years or more—which is seen as a threat to marriage. I have a number of questions to ask about that.

First, does it really create a new legally defined form of relationship, or is it in fact simply a legal criterion, which judges will need to use in deciding issues of financial settlement? I appreciate that if we were talking about a couple saying to each other, "I am going to commit myself to you for at least two years on the understanding that, if after that we break up, there will be an equitable settlement", and this commitment had legal basis, then we would indeed be talking about a new legal category of relations. As has already been referred to, if this was an opt-in scheme, again we would clearly have a new kind of legal relationship. However, we are not actually talking about that. We are not talking about the basis on which the couple entered upon their relationship; we are talking about the consideration that a judge would use in the event of a break-up being brought before him. The first question he will have to ask is simply: do they qualify; have they lived together for at least two years?

The Church of England's position is that for cohabiting couples without children the judge should only be able to authorise financial support for one of the couple if it can be demonstrated that there is going to be manifest and substantial injustice as a result of the break up. This is in contrast to the Bill as it now stands, in which financial settlement would be made if the judge considered it just and equitable to do so. My first question, and it is a genuine question, is whether, if we are going to talk about a new legally defined relationship, and I have called that into question, this criterion of manifest injustice would not, at least by implication, just as much create one as does, so it has been suggested, the Bill. For if the judge is going to determine whether or not there is manifest and substantial injustice as a result of the break-up, he or she still has to refer to a relationship of some kind. Presumably, it would not, for example, be applicable to two friends or a brother and sister living together, or would it? If so, what would be the implications of that?

My second point, and one which goes to the very heart of the matter, is whether, if it is agreed that a new legally defined relationship would come into being—I have questioned whether it would—this would indeed be a threat to marriage. The papers produced by the Church of England rightly very much have this concern in mind, but I would like to probe this a little. Let us ask why people choose to cohabit rather than marry.

There are clearly a number of rather different reasons. One, the most idealistic, is that true love does not need the sanction of either church or state, and the couple simply wish to commit themselves to one another in, as it were, the purity of their express love. That reason may be coupled with a very strong ideological objection to state or church-sanctioned marriage. However, either way, the introduction of a new legally defined relationship is not going to affect their view of marriage. It will not make them either more or less inclined to marry; they are opposed to the whole institution anyway. A second category of couple who cohabit are those who have had a bad experience of marriage. Either they were the children of unhappy parents, or they have had a painful first marriage themselves. Again, I suggest that the introduction of a new legally defined relationship is not going to change their attitude to marriage. They have experienced it as a destructive institution with which they want nothing to do.

Then we come to the third category: people who live together because, for personal or practical reasons, they do not feel ready to commit themselves to a public ceremony. They may think that they are too young; they may have career commitments; or they may feel that there are so many pressures on marriage today that it is best to see how the relationship goes before finally committing themselves to marriage. I think that it is this category or person that the noble Baroness, Lady Deech, particularly had in mind.

Many couples in this category will have marriage in mind when they start to live together, and many go on to marry. However, in the early stages it is, as it were, "not yet". Is the introduction of a new, legally defined relationship likely to make people in this category less likely to enter into a marriage? It might if they already have half an eye on the financial consequences of a breakdown in their relationship; perhaps this is what the noble Baroness had in mind. They might think that in the event of a break up, as there would be an economic safety net when cohabiting, marriage is not going to offer a great deal more in the way of financial protection. I suppose that they would be in the position of those contemplating pre-nuptial financial agreements. Very prudent, no doubt, but not very romantic—and you wonder if people going into a relationship with such a hard-headed view are really in the right relationship for them in the first place; at least, frankly, I do.

However, I concede that there may be some hard-headed, practically minded cohabitees as there are hard-headed, practical devisers of pre-nuptial agreements. But I suggest that they are not many, and that they hardly affect the argument before us today. The fact is that those cohabiting for the third set of reasons I have suggested have their own reasons for so doing. The introduction of a new, legally defined relationship of cohabitation—if that is what it is—is not going to sway them either way in their attitude to marriage. They will probably have marriage in mind, but they will move on to it in their own way at their own time. They will not be inclined to stay just as they are because of the introduction of financial safeguards for cohabitees who break up.

I regard the institution of marriage as one of great worth in its own right, standing with a truth and luminosity that is both natural and Christian. Time does not allow me to expand on this. I also regard it as proper for our society to give marriage a special place in our law. I am, in fact, sympathetic to the argument of the late Lord Devlin in his famous debate with Professor Hart some years ago, when he said that our law quite rightly reflects the understanding of marriage given by our history, culture and religion; that it is, as he put it, the house we inhabit. Nevertheless I recognise that, as legislators, it is right that we should also approach issues like this from a utilitarian, cost-benefit analysis point of view. From that point of view, it is also true that the institution of marriage serves the common good of our society better than any other alternative.

I am a strong believer in the institution of marriage, first and most importantly because its truth and beauty stand in its own right, but also because our law rightly reflects our history, culture and religion, and thirdly because of the economic benefits it brings to society as a whole, compared to any other alternative.

If the institution of a new legally defined relationship of cohabitation—if it is this—served to undermine the place of marriage in our society, I would be very hesitant about adopting it. But for the reasons I have suggested, it does not seem to be the case. The introduction of this new legally defined relationship—if that is what it is—will not have the effect of deterring people from getting married. If they are cohabiting, they will continue to cohabit until, for a variety of reasons, they decide to marry, if they do. If they do so, again it will be for a range of very personal reasons.

As has been mentioned, it is true that the number of marriages is falling. There are a number of complex reasons for this, but introducing this Bill will not increase that number, nor will refusing to introduce it shore up the institution of marriage. Besides, as I have suggested, the value of the institution of marriage exists in its own right, and the reasons for it, if they are persuasive, as I believe they are, are persuasive in their own right.

I asked, first, whether the Bill does in fact create a new legally defined relationship, or whether, rather, it does not simply supply a judge with appropriate criteria if cases come before him looking for a proper financial settlement. That question can be answered only by the lawyers among us. Secondly, I have asked whether the criterion suggested by the Church of England that such a settlement should be for manifest and serious injustice only is so very different from that suggested by the Bill, in that if there is a new legally defined relationship presumed by the Bill, there is also one, by implication, in the alternative put forward by the Church of England. Thirdly, I showed that there are different reasons why people cohabit, and suggested that the Bill would not make them either more or less likely to marry. Finally, I believe that the reasons for marriage have cogency in their own right, and that making legal provision for cohabitees whose relationship breaks down, even if they do not have children, does not detract from the force of those reasons and does not undermine the institution.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 1:17, 13 March 2009

My Lords, I think the answer to the first question of the noble and right reverend Lord, Lord Harries of Pentregarth, is that if the Bill is passed, it will give rights to people who would not otherwise have them. Whether it creates a new class is something that I will leave to the Bill's author, the noble Lord, Lord Lester of Herne Hill.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

My Lords, I shall deal with that point now. Clause 2(1) makes clear that cohabitation is defined only:

"For the purposes of this Act".

Therefore, the noble and right reverend Lord, Lord Harries, is perfectly right: this is not creating a new recognised relationship, but is laying down criteria for the courts to be able to apply, especially as regards financial provision.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I am a convert to the importance of regulating some aspects of cohabitation. Therefore, I support the Bill in principle. I assume that it relates to those who wish to have a sexual relationship by way of cohabitation. That is clear from the fact that one aspect of it clearly deals with such couples having children.

I very much support marriage. I have been married for longer than the noble Lord, Lord Lester—some 50 years with a very long-suffering husband. I agree with a great deal of what the right reverend Prelate and the noble and right reverend Lord, Lord Harries, said. I do not believe that marriage will suffer as a result of the Bill. I did once, and I own up to being wrong. I entirely agree with all the reasons that the noble and right reverend Lord gave, which he set out very clearly, although I have not done the same degree of work on the measure. As the noble Lord, Lord Lester, said, the experience of other countries is that marriage has not been affected by such a measure. If it had, I would be unhappy to support the Bill. However, we need to remember that marriage, according to the statistics, thank goodness, is more stable and longer lasting, and provides something which, as the noble and right reverend Lord said, those of us who are married are glad we are part of.

I profoundly disagree with the noble Baroness, Lady Deech. She is unjust to the lawyers who support this Bill. It is important to remember that not only did the Law Commission propose a somewhat similar Bill, but the Family Law Bar Association, Resolution—formerly the Solicitors' Family Law Association—and the Law Society supported it. They are not supporting the Bill only to get more shekels in their pockets. I declare an interest as, and am proud to be, an honorary member of Resolution. It has many lawyers dedicated to looking after unhappy couples after their relationship has broken down. They have a superb protocol that puts the welfare of children first when parties' relationships break down, and their duty is to give unpalatable advice to their clients if the breakdown is not in the interests of their children. I do not believe that the support given by the FLBA, Resolution and the Law Society is based on money grabbing.

Of course there are lawyers who make a great deal of money out of divorce, but one aspect of the Bill is that it uses the phrase "reasonable needs", which went out some years ago as regards marriage, divorce and post-divorce settlements. Footballers' wives get large sums of money, because there is no restriction on what can be granted in the discretion of the judge. However, the discretion of the judge under this Bill would be limited to what used to be called "reasonable needs" and for a limited period.

Another reason why I profoundly disagree with the noble Baroness, Lady Deech, is that I think she does not recognise the very real problems on the ground. Lawyers recognise them, and I hope noble Lords will forgive me for saying something as a former family judge for 35 years about my experience in trying cases. There are two sorts of women who do not necessarily know their rights or understand what they are letting themselves in for. One sort is educated and does not have the knowledge, but there are a large number of relatively uneducated women; I am not being patronising or condescending in recognising that they need help. There is a very real problem, and I have met it in the cases that I have tried. There is an unsatisfactory and unfair situation for women and children, and occasionally perhaps for disabled men, and there are vulnerable groups whose needs and human rights are not being met by the present state of the law.

My experience is very similar to the Burns case referred to by the noble Lord, Lord Lester of Herne Hill. I have dealt with similar cases again and again. I should tell you what happens. A couple live together for, say, 17 years—as I remember in a particular case—and the woman subordinates her career to the man. She takes some part-time work, she brings up their children and they live as if they are married, but they do not get married. At the end of 17 years the man finds a younger woman and walks out—except he does not just walk out, he tells her to get out. When she says, "But I have a share of the house", he says, "The house is in my name. You have not put any money into it. You are out and I will pay something for the children". He may or may not do that, but he does not pay a penny for the roof over her head. She becomes a burden on the state. Someone has to house her, because she is a priority housing case; if he does not pay, her children are in the position of children of married couples whose fathers do not pay, but she has no rights.

There is obscure and very complicated property law of the constructive and resulting trusts. As a non-Chancery lawyer, I have fought my way time and again through these resulting and/or constructive trusts to try to find whether a particular woman had put in sufficient money, or there was sufficient agreement between them, so I could make findings of fact that there were agreements that met up to a trust which included her having a share of the house. In 95 per cent of cases, I failed. I am astonished at my noble friend Lady Deech saying what she said, as she is a very distinguished academic lawyer, but she has not had these cases on the ground, as I have. She has underestimated or overlooked the state of property law in relation to people, mainly women, who do not have an interest in a house. That is the major point that the Bill is attacking. It is to be congratulated on attacking it, and that is the point that the Law Commission put forward.

The Church of England paper, which I read with interest, states that this would be more expensive on legal aid. It is not a point that has been taken, except by my noble friend Lady Deech. The present law, where women try to have an interest in a house, has cases that are long and complicated and that need judges who understand the law, and they cost a great deal of money. The Bill would very much simplify the situation. The cases would be quicker and cheaper for the state as well as the individual and, almost certainly in many cases, they would have to be settled.

The most important point is that the children of the couple who do not marry but live together for a number of years would be protected by the Bill in a way in which they are not protected now. If the primary carer is, as in most cases, the woman—most men expect the woman to be the primary carer—that woman will have no recourse to accommodation and she may end up, as we know perfectly well, despite being priority housing, in bed and breakfast accommodation with relatively young children who are very difficult to manage.

Photo of Baroness Deech Baroness Deech Crossbench

My Lords, I crave your Lordships' indulgence in raising one point. I referred to Schedule 1 to the Children Act, which gives property and other financial possibilities to women in that situation. I referred to constructive trusts, the arguments about which in fact have been very generous towards women in the most recent cases. I do not want to bore noble Lords with arguments about recent cases.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I accept that; I have gone slightly too far. My noble friend Lady Deech is entirely right that there are provisions, but they are nothing like as satisfactory as those that would be provided by a simplification and clarification of the law by an extension of jurisdiction to such mothers and, occasionally, fathers.

I have reservations about certain clauses. I listened with particular interest to the right reverend Prelate, and I agreed with much of what he said. However, the Church of England's approach is unworkable and unrealistic. The approach of the right reverend Prelate is one that I very much prefer. Those reservations include whether two years where a couple have children is right, and whether it should not be two years at least for everyone. Some of the valid criticisms made by my noble friend Lady Deech could be met by other amendments to the Bill.

I congratulate the noble Lord on introducing and pursuing the Bill; it is admirable that he has done so. It is important that this House should consider the Bill, and I very much support it in principle.

Photo of Baroness Afshar Baroness Afshar Crossbench 1:29, 13 March 2009

My Lords, I thank the noble Lord, Lord Lester, for introducing this Bill. I speak as a Muslim woman and declare an interest as the chair of the Muslim Women's Network. However, here I speak in an entirely personal capacity as someone who, through training and culture, has never cohabited and who, some 30 years ago, had the good fortune to find the only man in the world who could survive being married, and staying married, to me.

I feel that Muslim women—in particular, in this country and particularly those who are in a polygamous marriage—suffer enormously because they have no protection. In this respect, I agree with the noble Baroness, Lady Deech, that they should make a contract and that they should choose to be married. As a matter of fact, in both cases they do. In Islam, marriage is a matter of contract in which women are paid—they are entitled to payment for consenting to the marriage. I am sorry, but I find that in no way unromantic. I always thought it was essential that someone realised that I was worth a great deal and agreed to pay. Women also have the right to maintenance, to wages for housework and to payment for suckling their babies. Therefore, in that sense, all women in formal marriages who choose to work within the household are recognised as a matter of course as being in paid employment.

However, we have an enormous problem in that those rights are not necessarily transferable across borders or nations or, unfortunately in this country, across cultures. That is the real problem for Muslim women. If their marriage is registered—it is compulsory in Iran to register all formal marriages—that registration remains, for example, in Pakistan but is not transferred to the UK when they arrive as someone's bride. They assume that they have a range of entitlements but their husbands may suddenly decide to bring in another woman. In the case of the marital contract in Iran, women are required to give their consent to a second marriage, and they can decide where they live and so on. However, none of these rights is transferred when they come to this country, and therefore any Muslim woman is at any point vulnerable to finding a second woman brought in, willy-nilly, by her husband, who does not register the second marriage either and can bring in a third and a fourth wife.

There is much discussion among Muslims across the world as to whether men have a Koranic right to marry even a second wife. As I said, in Iran it is accepted that the only way that a second wife can be admitted to a household is with the legal written consent of the wife. However, in this country, the absence of registration and of recognition of the legally agreed entitlement of married Muslim women means that some women are more married than others. You can have women who are recognised, registered and entitled to a pension, inheritance, a house and so on, and in the same household there may be women with no rights whatever. Furthermore, under a Muslim contract, at the point of marriage a woman can decide whether she is going to share in the wealth of her husband and, even more importantly, whether her husband has any right to her wealth. One problem experienced by professional Muslim women who are married in this country informally is that their husbands may well claim their rights, particularly if these women are not familiar with the laws of the land or the language when they come in and the husband registers what they bring in as his wealth. It is very difficult to protect women who, in good faith, have entered into a contract that is supposed to give them security and protection but, when they arrive here, they become dispossessed citizens.

Also problematic is the fact that, as their marriages are not registered, they have nothing to work with in their own defence. Of course, there is an extensive group of women who work within communities in this country who are trying very hard to ensure that the women who come in without any kind of protection have some support. In the Muslim community it is difficult to go against kinship norms and survive. We are raised to depend on our families and to protect our families and we are raised not to speak against them. To start a campaign to protect second and third wives, who are enclosed in families who do not respect their rights, is not easy.

It is certainly not easy to register their children. In one household, you can have children who are legally recognised as the children of the husband and in the same household you can have children from the same man who have no rights to inheritance, no entitlement and are not recognised as legitimate children of the household, even though the wife, in good faith, assumes she is the wife of the man. That inequality should not be tolerated. I very much wish that we could insist on the registration of all marriages. At least, that would deal with the free choice that those women have made. To me, it is unacceptable that citizens born in this country are not recognised as the lawful children of their fathers, when their mothers had assumed, in good faith, that they would be. I very much hope that the Bill will be recognised.

Photo of Baroness Thomas of Walliswood Baroness Thomas of Walliswood Spokesperson for Women and Equality 1:37, 13 March 2009

My Lords, this has been a very interesting, if not over long, debate. I thank the two right reverend Prelates—one still active and one retired—and the noble and learned Baroness, Lady Butler Sloss, for their extremely gentle perception of this Bill. Very acute observations were made by all three of them about the details of the Bill, but one felt the fundamental goodwill behind what they said. I am very pleased, on the behalf of my noble friend in view of the amount of work he has done, that they were able to show their very learned support.

My noble friend has already described, with his usual expertise, the purpose of his Bill and the range of its provisions. I will not attempt to follow him down that route. However, I turn to the justification for the Bill, based on the work of researchers, the development of public opinion and the clear disadvantages of the lack of legal framework for the dissolution of such arrangements. I urge the Government to take this matter seriously. In my opinion, the best outcome would be for the Government to take over the Bill, albeit possibly in an amended form—I am not sufficient legally qualified to judge that—and promote it as their own Bill. We are all becoming very conscious of time in Parliament at the moment, and I hope that the Government will have enough time to do that.

Whether we like it or not, and quite a lot of people do not like it, cohabitation is an increasingly common form of family life, not just in the UK but generally in the western world. Although marriage is still the most common form of family, the number of people marrying is in decline. The noble Baroness, Lady Turner, expressed that view with great clarity. A quarter of all children are born to cohabiting couples, and the majority of people in such couples, together with the public in general, think that they have the same rights as married couples. Yet the current absence of a framework for dealing with the breakdown of cohabiting couples can disadvantage both the children of such a relationship and the financially weaker of the two partners. This is the wrong that my noble friend's Bill is designed to right.

Not everyone approaches this matter in the same way. A friend of mine in this House maintains that it costs so little to acquire the benefits of marriage by visiting the registry office that people should avail themselves of this facility instead of setting up less satisfactory arrangements. Many people might say the same, but the law has to change with the choices that people make, and people are choosing not to marry, although it is perfectly true, as several noble Lords have pointed out, that people may choose not to marry at the beginning of a relationship but marry later on. That is a different situation.

Cohabitation is widely accepted as an acceptable way of creating a family, but that family is more vulnerable if it breaks up than other forms of family are. People who live together rather than get married may not even make wills, and if one partner has less financial clout than the other, perhaps because of being the caring parent, that person has no redress when the partnership breaks down.

Public opinion also seems to be on the side of change. The 2008 British social attitudes survey found, among other things, that two-thirds of respondents thought that when a couple had been living together for as little as two years, and there is a child of that relationship, the man should pay child support to the woman who will be their child's chief carer. The poll also showed that the same proportion thought that a childless co-habitant should inherit the home bought by their deceased partner before their relationship began as though they were a married couple. Public opinion seems to support the rights of co-habiting couples almost as though their partnership has the same importance as marriage.

Finally, the legal professionals in what used to be known as the Solicitors Family Law Association also support the purposes of the Bill—in fact, they have played a very large part in creating it—including its provisions on separation or the death of a partner, because they feel that co-habiting couples should be able to separate in a sensible way that assists them to end their association without damaging the partners' future. As my noble friend has explained, however, the Bill's provisions for cohabiting couples are not the same as those for married couples who divorce. The presumption is that the couple will be financially self-supporting as soon as possible, and that claims on assets will be limited to reasonable needs. The well-being of any children of the partnership will come first. That is an extremely important provision for me, as it is, I think, for all of us.

The case for the Government taking on the Bill is considerable. Many people enter into partnership arrangements without advice on what the legal aspects of such a relationship really are. Damage to children or to the economically weaker partner can ensue, and a method of redressing this disadvantage is needed. On the other hand, nothing in my noble friend's Bill gives cohabiting couples the same rights as married couples. The Bill provides the possibility of making fair provisions in the case of the breakdown of partnerships, which is very much welcomed and supported by the very lawyers who deal with these cases and understand them the best.

Photo of Lord Henley Lord Henley Shadow Minister, Justice 1:45, 13 March 2009

My Lords, the noble Lord, Lord Lester of Herne Hill, will not be surprised to hear me say that I will not be able to offer him much support, but he is probably used to that by now. I am not sure that I have been able to support him on many of his Bills in the past. Having said that, I am grateful for his detailed exposition of what Resolution—formerly known as the Solicitors' Family Law Association, as the noble Baroness, Lady Deech, told us—and the noble Lord's own Odysseus Trust have put together in forming this Bill. I was interested in the name of the trust. It brought to mind Tennyson, and the noble Lord will remember his poem entitled "Ulysses", in which Odysseus reflects on old age:

"It little profits an idle king,

By this still hearth, among these barren crags,Match'd with an aged wife, I mete and doleUnequal laws unto a savage race,That hoard, and sleep, and feed, and know not me".

Perhaps this is another example of the unequal laws that the noble Lord wishes to force on to the savage race which, I suppose, includes the likes of me.

I want to explain briefly why I and, I suspect, most of my noble friends cannot support this Bill. First, as the noble Baroness, Lady Deech, made absolutely clear, it removes choice from individuals. I accept, as the noble Lord made clear in his introduction, that there is an opt-out, but it is one that the parties have to find rather than having a new status, as the noble Baroness, Lady Deech, put it, imposed on them. I also fully accept her human rights point that it is possibly a breach of human rights to be put into a position one does not wish to be put into, purely because a certain time has passed or other events have taken place. In my view, it is far better that people make the conscious decision to enter into such arrangement themselves, just as with marriage, rather than drifting into them purely by the passage of time or, as I have put it, other events.

The noble Lord and others touched on the point about ignorance of the law, and how so many believe that there is some such thing as a common-law marriage and that they are protected. In the criminal law, ignorance is no defence. I appreciate that it is jolly difficult to know the criminal law now because the Government pass so many new criminal justice Acts. Even so, as the noble and learned Baroness the Attorney-General will assure us, lack of knowledge of changes in the law is still no defence, and the same should apply to the status of marriage, partnerships or whatever.

I think that my second point is important. I believe that the Bill would undermine the institution of marriage, at a time when we should all be doing our utmost to support it. We have seen the statistics on many occasions showing the far better outcomes for all children when their parents live in a stable relationship and, as we all know, that stable relationship is much more likely to be marriage than some partnership of whatever form. I would like to see the Government do everything they can to support the institution of marriage. I quote Jill Kirby at the Centre for Policy Studies, when she criticised the plans as introducing a,

"kind of marriage lite. If a man and a woman want to create a family together, then the most durable contract available to them is marriage. If they decide not to marry, then I think consequences must flow from that, and that if we introduce ... a kind of substitute version, as the Law Commission proposes"— she was talking about the proposals from the Law Commission rather than that of the noble Lord—

"then it does detract from that institution and I think will lead to more confusion".

Thirdly, if we are to have a Bill of the sort the noble Lord is talking about, it would fail to deal with other cohabitees who have similar rights. We had this argument in the then Civil Partnership Bill when it passed through the House, and I assure the noble Lord that if he pursues this proposal he will hear the arguments again. It does not deal with a carer looking after an aged parent when that aged parent dies. It does not deal with two sisters who inhabit the same house, and then one dies and the other finds that inheritance tax forces her to sell up and make other arrangements for the rest of her life. However, as I understand it, the Bill gives some inheritance tax protection to people who have been forced into a cohabitation pact, or whatever it might be.

Fourthly, and I say this with some trepidation in the presence of the noble and learned Baroness, Lady Butler-Sloss, it creates work for lawyers. We should always remember that Adam Smith said that when two or three people of any profession get together, one can be fairly sure that there will be a conspiracy against the public. On this occasion, we have had some 5,000 members of Resolution, formerly known as the Solicitors' Family Law Association, getting together. There is ample evidence that there will be extra work for lawyers. We only have to see that to opt out of entering into some partnership, both parties have to take expert legal advice. That is not a cheap option for those parties, wise though it might be, and we can be fairly sure that later on, when these arrangements split up, there will be further calls on the public purse.

My fifth point is to ask the noble and learned Baroness the Attorney-General what estimates the Government have made—if they have made any, because I imagine they do not want to support the Bill—about the costs to the Legal Aid Fund. We all know the pressure it is under at present. What further pressure do the Government feel is likely to be put on it by a Bill of this sort?

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

My Lords, before the noble Lord comes to his final point, can he say, on behalf of the Opposition, whether they recognise that there is a serious social problem that needs to be addressed? So far, I have not heard any recognition in what he has said.

Photo of Lord Henley Lord Henley Shadow Minister, Justice

My Lords, the noble Lord will be aware that, as always with Private Members' Bills, I am speaking for myself, although I indicated that I expected that most members of my party would support the line I was taking. I accept that there are problems. The point I am making, and other noble Lords have made it, is that what is proposed does not solve those problems and, in fact, makes certain things worse, particularly as it undermines the status of marriage. I think that undermining the status of marriage is worse that what the noble Lord is trying to do.

My sixth point is about child support, which must be the most important part of any break-up between two people who are not married. As we know, arrangements can be brought into effect for absent fathers—that is normally the case—to support their children when relationships break up and they are no longer living together. I remember being involved with my noble and learned friend Lord Mackay of Clashfern in the introduction of the first Child Support Bill some 20 years ago, or perhaps a bit less. As we know, not all that legislation is working as well as it ought to. Further attempts at reform have been made over the years, and the Government have also attempted to reform it. I think the Government, rather than going down the route of offering support to the noble Lord's Bill, would be better advised to pursue further attempts at ensuring that what we will simply refer to as absent fathers—they are not necessarily always absent fathers—do their bit to support children. Therefore, as I said at the beginning, I regret to say that I cannot offer any support to the noble Lord.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Attorney General's Office, The Attorney-General 1:54, 13 March 2009

My Lords, on behalf of Her Majesty's Government, I thank the noble Lord, Lord Lester, for the considerable work that he has expended on the Cohabitation Bill, and for introducing it to this House, giving rise to what has been a fascinating Second Reading debate about its terms.

I also commend the intention behind the Bill, which I understand, which is to provide financial support to couples who live together, when their relationship comes to an end. As the noble Lord knows only too well, the Government have had this issue in our sights for some time. Noble Lords will remember that we identified it as an issue that needed to be addressed and asked the Law Commission to look at it very seriously. I acknowledge that the noble Lord made that plain in his remarks. I am therefore by no means surprised by the support of my noble friend Lady Turner for the Bill.

It may be helpful if I clarify some of the legal issues of note before I go on to explain to the noble Lord, Lord Lester, why, I regret, I am unable to support the Bill. First, on what the noble Lord said about void and voidable marriages, he will know that if a marriage is void—that is, within prohibited kinship or through failure to comply with the Marriage Acts—financial relief can be given. Where people undergo a purely religious marriage, it is invalid if it does not comply with the Marriage Acts and is not registered, as was referred to by the noble Baroness, Lady Afshar, although it is not quite as she described. Marriages contracted in countries where polygamous marriages are valid are recognised, but polygamous marriages contracted in England and Wales, where polygamy is not recognised, are invalid.

I reassure the House that the Children Act has made significant improvements in our ability to give support and make financial arrangements for children. Indeed, we have virtually eradicated the adverse impact of illegitimacy in relation to maintenance and inheritance by a plethora of proceedings that I will not burden the House with now. We have substantial protection for children.

I do not detract in any way from those who rightly described some of the real difficulties that women who are not aware of the real consequences of not marrying face when they discover them. However, it is important for us to look a little at the history of what we have done to try to address that issue.

Your Lordships will know that in 2006, the Department for Constitutional Affairs, as it then was, commissioned research that suggested that some people argued for legal reform in the areas of rights to property and other assets, recognition of non-financial contributions and parental responsibility. The research showed that views about whether cohabitants should have the same or similar rights as married couples were very diverse. The diversity of view was clearly exemplified by the noble Lord, Lord Lester, in his excellent speech setting out why he wants the Bill, and the impassioned and erudite riposte by the noble Baroness, Lady Deech, giving all the reasons why she thinks we should not have such a Bill, supported by the noble Lord, Lord Henley.

The research suggested raising awareness about the legal position of cohabitants and wider use of cohabitation agreements, or other ways of formalising arrangements, as additions or alternatives to legal reform. Your Lordships will know that we are considering how we should respond. The Government have asked the Law Commission to look at the whole question of matrimonial property agreements, including prenuptial agreements and agreements made after marriage.

In addition, as has already been referred to, in 2005 the Ministry of Justice, as it now is, asked the Law Commission to consider further the legal position of cohabitants when their partnership ended. Its report, Cohabitation: The Financial Consequences of Relationship Breakdown, was published in July 2007 and recommended a new scheme entirely distinct from that which applies between spouses on divorce. The scheme aims to provide a sound basis on which to address any hardship and other economic unfairness that may arise when a cohabiting relationship ends. The comments made by the right reverend Prelate the Bishop of Winchester rightly concentrated on hardship and disadvantage. The noble and right reverend Lord, Lord Harries of Pentregarth, interestingly introduced the idea of manifest and substantial injustice as a criterion on which financial relief should be based. That very much goes to support the Law Commission's approach of directing attention to the mischief that so many of us have wished to address.

The Law Commission did not believe that all cohabitants should be able to obtain financial relief in the event of separation. Instead it recommended that a remedy should be available only where the couple satisfied certain eligibility requirements and had not agreed to disapply the scheme and the applicant had made qualifying contributions to the relationship giving rise to certain enduring consequences at the point of separation. Noble Lords will know that provisions for cohabitants to receive financial provision when relationships break down were introduced in Scotland in 2006. This protection is very different from that given to married couples. It is based on the concept of compensation for losses incurred, and the share of gains accrued, as a result of the cohabitation together. This Government would like an opportunity to assess how the Scottish provisions operate in practice before considering what might be the best approach for England and Wales, which is a much larger jurisdiction. I heard what the noble Lord said about it not materially impacting on marriage and there being very few cases so far. We understand that the Scottish Executive have not yet set a timetable for the evaluation of their legal provisions for cohabitants but that they do intend to evaluate them.

We feel that the Bill introduced by the noble Lord, Lord Lester, goes further than the Law Commission's proposals. The Law Commission's report looked at addressing hardship, but the Bill is about dividing assets in a manner that is akin, but not identical, to the Matrimonial Causes Act 1973. It is fair to say that we have concerns about the Bill's provisions. We believe that to support it would be to take a wrong approach towards addressing the mistaken perception that cohabitation confers a quasi-marital legal status. Although we entirely accept that that is not the intention of the noble Lord, Lord Lester, the provisions will be likely to result in costly and complex legislation, and that is not sustainable. The impact and the numbers affected would be significant. According to the 2001 census, the number of couples living together exceeded 2 million, and analysis suggests that cohabiting couples are more likely to separate than married couples. We believe that the approach adopted in the Bill would be likely to generate litigation on a large scale, with a vastly increased burden on individuals, the legal aid fund, the courts and judicial resources.

We are also, importantly, dealing with the question of an individual's freedom of choice, though I would perhaps not describe it quite as the noble Baroness, Lady Deech, did, as a "corner of freedom". In the Government's view, cohabitants should have a choice about when to change their legal status in relation to another adult. Any alteration of that legal status should not be dependent on the taking of limited legal advice, with that advice itself being subject to change over time. However, I do not suggest for a moment that those putting forward these provisions do so on the basis of wishing to make more money for lawyers. I declare an interest as a family lawyer who has been a member of the Family Law Bar Association. As someone who has worked closely with solicitors from a similar discipline I can say that the intent of family lawyers is to try to assist families and children to resolve their issues smoothly and in a way which is beneficial to the parties and not to their own pockets. So I cannot agree that that was the intent behind the provisions. None the less, they would be costly.

Young people often enter into relationships that they do not intend will end in marriage. As other noble Lords have said, these are often transient relationships that a person may repeat two or three times before choosing someone whom they wish to make their lifelong partner and/or marry. We believe that a better approach would be to seek to correct the mistaken perception rather than to change the law to match the mistake. The Bill builds-in the involvement of lawyers in a way that we do not believe is appropriate. It would create incentives for going to court and fuel the litigation culture, and that runs counter to the Government's view that only those cases that require judicial intervention should come into the justice system. Instead, as has already been said, there should be an encouragement of mediation and alternative dispute resolution to settle these conflicts in both family and civil matters. Indeed, further to the various government initiatives to help families resolve parental disputes when they have turned to the courts for help in deciding who a child should live with and see, some 40 per cent of the orders—28,000 in 2008-09—are made by consent. We believe that sufficient provision for financial and property protection is already available to couples who live together, with the principal barriers being ignorance and, sometimes, regrettably, inertia.

I am sure that your Lordships will also appreciate that in addition to those concerns, in practical terms, we already have a very full and challenging legislative timetable. Of course I hear the plea, "Could we not squeeze just one more little thing in?". I am grateful that I am not the business manager and do not have that burden placed on my shoulders. However, I do think that it would be a bit of a challenge.

Although more needs to be done, we are already doing as much as we can to address conflict within families, stabilise relationships and reduce the trauma to children. I would not say that our work is finished, but the provisions in the Bill are somewhat at odds with the work we are doing with families and vulnerable groups to protect them better and help them to build stable family lives. We are spending significant sums focusing on the National Offender Management Service, which delivers a broad range of interventions to address particular risks. I say that because we are concentrating on parenting and relationship skills, and spending appropriately on training, education, work and matters of that sort.

In addition to the initiatives we started, in January 2005 the Government published Parental Separation: Children's Needs and Parent's Responsibilities—Next Step, which sets out our plans to deliver a range of measures designed to help separating parents in dispute to decide who a child should live with and see and to reach agreement about future parenting arrangements. Research has shown that when separation goes badly, in particular where children are drawn into parental conflict, the effects can be very damaging regardless of whether the parents are married.

The cross-government work has delivered improvements in the information available to parents and a greater use of alternative dispute resolution mechanisms, such as mediation and conciliation at the start of court proceedings delivered by the Children and Family Court Advisory Support Service. We continue to promote these methods as a better way of reaching agreement than through contested court hearings. We have issued self-help guides such as Putting Children First: Parenting Plans, a guide to separating parents to help them work out the best possible arrangements for their children by showing them the various arrangements that have worked well for different families in different circumstances. The guides have an average distribution of 4,800 per month and should be available in solicitors' offices, court waiting rooms and GP surgeries. It is by linking these initiatives that we can consider further how to raise awareness about the needs and rights of cohabitants, instead of complex and expensive legislation.

Further work is being carried out by the Department for Children, Schools and Families, which is now leading on work to improve services for separating parents. Last December a package of support for adults and children experiencing family breakdown, or at greatest risk of experiencing it, was announced. That included local pilots to test the provision of better co-ordinated local support for separating and separated parents.

Separating parents have a number of practical and emotional issues to resolve following separation, which include child maintenance, child contact, benefits, tax credits, and legal, housing and work matters. For many, the emotional and practical issues are inextricably linked. Many families need either access to counselling and mediation services or practical and legal support, delivered in a way that really makes a difference.

The noble Lord's Bill deals with a number of important issues, and I hope that from what I have said your Lordships will accept that our priority is to help individuals who are in exactly the situation that has been described in this debate. From the provisions your Lordships will know that, in areas such as bereavement and registration of death, we accept that there is a case for some reform in the interests of fairness. Action is already proposed, for example, to amend the Fatal Accidents Act 1976 and the Coroners and Justice Bill, currently in the other place, which the Bill would duplicate.

The principal element of the Bill is, in effect, provision for the equivalent of the division of property on divorce or dissolution of civil partnership to be available for former cohabitants, provided that they apply within two years of the end of their relationship. I hear what the noble Lord says: that structure could be changed, the timing could be looked at and the nature of the criterion could be looked at. We fear, however, that the proposals, including the opt-out, are complex. There are real issues about when legal advice was taken, as people could subsequently seek to suggest that, with the effluxion of time, the conditions had changed since the agreement was made, and so on. Those complexities are very real.

The insurance has been referred to. It is already possible for people to assign insurance policies to named individuals. The Law Commission and the Scottish Law Commission issued a joint consultation paper on insurable rights in January 2008. The response was published in May 2008, and they will be publishing an impact statement with a final report and draft Bill on consumer insurance in the future.

With regard to wills, noble Lords will know that provisions can be made where there is a will; where there is none, we already have provisions that apply if the couple is living together at the time of the death. Bereavement damages, as I have mentioned, can be provided for.

On the registration of death, the Government have included provisions that would deal with that matter in the Coroners and Justice Bill, which received its Second Reading on 26 January this year. We now have a plethora of advice provision regarding this issue. The Government fund the Advicenow website with the Advice Services Alliance, and we have had over 1 million visits to that site. We work in partnership with Amazon and ASA. The media campaign LivingTogether is now in its fourth year. A study by Professor Anne Barlow has assessed that campaign, and she says that it is very positive. We also have the One Plus One website. We are looking at new ways in which we can raise awareness with activities in schools. There are also better links across government for providing advice, with the DWP supplying pension advice and the Land Registry advice when couples buy property. There is the potential for doing more, including a one-stop shop.

I therefore understand entirely the thrust of, and purpose behind, the noble Lord's Bill. I also understand the opposition to it of the noble Lord, Lord Henley. I understand, too, the plea made in support of it by the Liberal Democrat Benches. I assure the House that we will continue to look at this matter—the Government have not resiled from it—but we do not think that this Bill is necessarily the right vehicle to bring home the strong desire of the noble Lord, Lord Lester, to provide help in respect of the aberrant effects that sometimes befall those who have previously cohabited. However, I assure the noble Lord, Lord Lester, that I have raised with my colleagues in the Ministry of Justice his plea in this regard, and I am sure that they will stand ready to have further discussions with him.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 2:16, 13 March 2009

My Lords, it is customary for somebody introducing a Private Member's Bill to begin his or her reply by saying, "I am extremely grateful to everyone who has taken part. The speeches have been extraordinarily wise and interesting, and I shall read all of them". On this occasion, I happen to believe what I have just said to be true and not part of the customary flattery or gratitude that we all express to each other in this most admirable institution.

I have listened to an extraordinary range of extremely wise speeches. When I listened to the right reverend Prelate and former Bishop, if that is the right way of referring to both of them, I realised that the Church of England cannot be described as the Conservative Party at prayer, as it once was. I have listened to speeches that are extraordinarily well informed. Perhaps the most devastating was that of the noble and learned Baroness, Lady Butler-Sloss, in dealing with the comments of the noble Baroness, Lady Deech, who made a very interesting speech which was about the same length as mine. I cannot really answer the noble Baroness, Lady Deech, in less than the time that she took herself, and I would not dream of doing so now. She said that she had thought about her speech for 30 years, but, after 30 years, she still does not seem to recognise the serious practical problems that ordinary people, especially working-class people, face under our current legal system. I think that almost everyone else and the Government have recognised those to be serious social problems.

I was counselled once by a very distinguished Conservative to consider the observation of the Judge Learned Hand, that the spirit of liberty is the spirit that is not too sure that it is right. I am not sure that the noble Baroness, Lady Deech, shares that view, but I keep the comment in my own chambers to remind me about the danger of dogmatism. I certainly feel that what has been said today, especially by the right reverend Prelate the Bishop of Winchester, ought to be debated in the form of amendments that probe and deal with some of the important issues that have been raised. I am very grateful to everyone. The problems of religious minorities, especially those of Muslim women, are really serious. I am indebted to the noble Baroness, Lady Afshar, for drawing our attention to them.

Perhaps I may be allowed a little joke in saying that the Attorney-General has done her best as a great advocate to make bricks without straw—by "straw", I mean the right honourable Jack Straw, because it will ultimately be him and the Treasury who decide whether to do anything at all in legal terms before the next general election. It is their responsibility, not mine, to decide whether they are content to run the risk, should they lose power, of losing the only the opportunity that they will have to give some safety net to people who are highly vulnerable and their children.

I am an extraordinary optimist. It took me only 30 years to get the Human Rights Act, and I like to think that it might take less time to get this one. The Attorney-General will remember that at about this time of year we had a debate on the Forced Marriage (Civil Protection) Bill. At that time, the Government were opposed to the Bill that I had put forward. It was debated here, just as it has been today, and the Leader of the House, standing in for the noble and learned Baroness, Lady Scotland, expressed not exactly hostility but certainly scepticism about the Bill. And then something remarkable happened, at about the same time of year: the Prime Minister personally decided to be in favour of the Bill. We sat down with Ministry of Justice officials and, by June, we had taken my Bill and turned it into something that the Government could commend.

I am perfectly sure that, if that political decision were now taken, it would be possible to strip out of my Bill any duplication—for example, with bereavement, and matters of that kind—to look at whether the two-year period was the right one or a longer one was necessary, and to try to avoid the situation in which the hated legal profession was in a position to be able to give people proper legal advice to protect their human rights. All those matters could be taken into account.

We do not have time to have a Select Committee on the Bill that would take evidence but, when the Law Commission has taken evidence and when we have taken evidence, the Government have no evidence whatever for the assertions that they have made today about how the Bill would increase litigation and be very expensive. That is not evidence-based but simply an assumption being put forward as an argument. On that sort of argument, when I was doing the Sex Discrimination Bill I remember the Lord Chancellor's Department telling me that, if we extended it to schools, 5,000 cases a year would be brought by dissatisfied schoolchildren and their parents and that under no circumstances should it apply to education at all. There has been less than one case per year over the past 30 years—not 5,000 a year. It is very easy for Ministers to exaggerate grossly what they think might follow from a Bill.

I have not done justice to all the speeches, but I thank everyone. I am sure that the noble Baroness, Lady Deech, will forgive me if I do not seek to persuade her, after 30 years, that she might just be mistaken in some of what she said. I do not think that I could ever achieve that. For all those reasons, I think that the right thing to do is to ask your Lordships to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.