Cohabitation Rights Bill [HL] - Second Reading

– in the House of Lords at 1:28 pm on 15 March 2019.

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Moved by Lord Marks of Henley-on-Thames

That the Bill be read a second time.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, it was in July 2007, nearly 12 years ago, that the Law Commission issued its report recommending the financial provision measures in this Bill. Then, in December 2011, it recommended the Bill’s intestacy and related provisions. Yet, in all this time, there has been no government action.

The proposals in this Bill are modest. They would not give cohabitants relief resembling the financial relief available on divorce. However, they would enable courts, in appropriate circumstances, to adjust the financial position of qualifying cohabitants on relationship breakdown, so as to spread the financial consequences, benefits and costs fairly between them. As I said when introducing the predecessor to this Bill in December 2014, in a passage quoted in the helpful House of Lords Library briefing, for which I am grateful:

“Essentially, and simplifying them to the core”,

my proposals,

“aim to address economic unfairness at the end of a relationship that has enriched one party and impoverished the other in a way that demands redress”.—[Official Report, 12/12/14; col. 2070.]

They are urgently needed.

When we debated this in 2014, the number of people cohabiting in the UK had risen from less than 3 million in 1996 to 5.9 million. The figure is now 6.6 million, and this rate of increase is not abating. The Office for National Statistics’ 2018 figures show that cohabiting families are the fastest growing family form and a quarter of all children are growing up in cohabiting families. About 40% of cohabiting couples have children together while cohabiting. The Bill is aimed not just at those couples but at their children, who stand to suffer from their parents breaking up.

This discussion takes place against the background of the misplaced but extraordinarily widespread belief that cohabiting couples already have legal protection on the basis that they are in what is often called common law marriage. It might be called that, but it does not exist. In January, the British Social Attitudes Survey demonstrated that 46% of people in England and Wales believe that cohabiting couples form a common law marriage. Despite all the publicity, that figure has remained almost unchanged since 2005. Only 41% of respondents get it right. I am grateful to Professor Anne Barlow at the University of Exeter for the further research she has done in this area, but the figures show that the level of ignorance is truly alarming.

The reality is that, in the absence of cohabitation agreements, cohabiting couples have virtually no legal protection. Rights to property are difficult and expensive to establish. They depend on outdated and unwieldy trusts law. A claimant has to show a joint intention that property should be jointly owned, and it remains extremely difficult to predict or ascertain what courts will decide the parties’ shares should be, even where joint ownership is established.

Child support protects the parents of minor children, where the arrangements work, and provides some financial support. However, when the children are older that stops, and the caring parent might be left unsupported, often having given up a career to look after the children. On the death of a partner, the survivor of a cohabiting couple might apply for limited provision under the Inheritance (Provision for Family and Dependants) Act 1975, but it is necessary to go to court to establish such a claim and it is limited. However, if a woman gives up a career to live with a man and look after their children, or even just his children, and contributes to his business, even spending her savings to do so, there is no relief. If one partner in a couple works hard in the business of the other and suffers financially as a result, and then they break up, there is no relief. If one partner helps to build up the assets or the property of the other and cannot establish an intention that it should be jointly owned, or cannot afford to try, there is no relief.

The present law is a charter for partners in cohabiting couples, whether inadvertently or deliberately, to take financial advantage of their relationship and to walk away when it ends, leaving the other party disadvantaged and without redress. Then again, if one partner dies without a will, the other will inherit nothing as of right from the estate, not even the home they lived in together. The Bill would ensure that where a relationship between qualifying cohabiting couples breaks down, the court could adjust the economic impact of the relationship so they share that impact more fairly. I would hope and expect that were these provisions to be enacted, couples would settle the financial consequences of breakdown amicably and without the need for court proceedings.

I will now introduce the main financial provisions in the Bill. By Clause 2, cohabitants are defined as a couple—whether same-sex or opposite sex—who either have a child together or have lived together as a couple for three years. Importantly, particularly in the context of allowing people freedom of choice, by Clause 6 co-habitants could by agreement opt out of the Bill’s financial settlement provisions. There are requirements in Clause 12 for independent legal advice, along with other safeguards and formalities for opt-out agreements. By Clause 14, there would be power in the court to vary or revoke unfair opt-out agreements. Other cohabitation agreements or deeds of trust would also be honoured under Clause 6(2)(c), so the scheme would not be compulsory. By Clause 7(3), there would be a two-year time limit for bringing a claim following separation.

Clauses 8 and 9 and Schedule 1 set out the scheme of the financial settlement provisions. The starting point is for the applicant to show that he or she has made or will make qualifying contributions, whether financial or in work, care or kind to the party’s shared or family lives. If as a result of such contributions the other party has derived and retained a financial benefit, actual or potential, whether in capital, income or earning capacity, or the applicant has suffered or would in future suffer an economic disadvantage, the court could intervene to award a financial settlement if it considered it just and equitable to do so, having regard to a number of discretionary factors, to which I turn.

The award would, first, reverse any retained benefit in full or in part so far as reasonable and practical under Clause 8(3). If the applicant would still be left with an economic disadvantage, the court could then order that disadvantage to be,

“shared equally between the parties”,

under Clause 8(4); again, so far as it is reasonable and practical. The discretionary factors to which the court would be required to have regard in deciding whether it was just and equitable to make an order include the welfare of any minor children of the parties, that being the first consideration; the financial position of each party; conduct which it would be inequitable to disregard; and the circumstances in which contributions were made, especially where they were discouraged rather than sought by the other party. The orders that could be made would, under Clause 10, be capital orders for lump sums, property or pension sharing. There would be no provision for continuing maintenance, although lump sums could be payable by instalments.

There are many who argue that it is not right to withhold from cohabiting couples the full relief available to couples who divorce. I do not agree. Couples are entitled to choose between marrying, entering a civil partnership or cohabiting. It is right that we respect the choices they make but that does not mean that cohabiting couples should be entirely without protection.

In 2014, the noble Baroness, Lady Deech, whom I am delighted to see in her place today, suggested that as a result of the then Bill, cohabiting couples,

“will find that they are snared unaware in a trap of laws from which there is no escape, save for the opting-out provisions of the Bill. Almost the entire panoply of marriage law is to be lowered on to them by the Bill once they have spent two years”— it is now three years in the Bill before the House—

“cohabiting … or if they are parents of a child”.—[Official Report, 12/12/14; col. 2072.]

I do not agree with the noble Baroness, although I look forward to hearing from her again today.

The noble and learned Baroness, Lady Butler-Sloss, would have liked to be here today but unfortunately could not be so. With all her great experience of family law, she has said:

“I do not see ‘the panoply of family law’ as an appropriate phrase for the very modest proposals that the noble Lord, Lord Marks, has put forward, particularly in Clause 8 of the Bill. These are modest proposals: you have to show either a benefit acquired or an economic detriment”.—[Official Report, 12/12/14; col. 2079.]

I regard the opt-out provisions and the respect for cohabitation agreements and deeds of trust as important in preserving choice for cohabiting parties. It may be argued that the Bill would encourage litigation between former couples, but I expect most cases to be settled by agreement, without coming near a court. Furthermore, mediation will play a large part.

I turn now to the most important of the proposals for change, in respect of the death of a cohabitant. Clauses 16 and 17 would enable cohabitants to insure each other’s lives and policies to be written for the other partner’s benefit, so as to fall out of the deceased’s estate for inheritance tax purposes. Clause 18 would provide that cohabiting couples would be treated as relatives for the registration of death. Most importantly, Clause 19 would enable the survivor of a cohabiting couple to inherit an estate and an interest in the estate of a deceased partner on an intestacy. Clause 20 would ensure that a surviving cohabitant could make a claim to the parties’ joint home.

Cohabiting couples would still be able to make their own wills, like everyone else, but the unfairness that often occurs when one partner dies intestate would be avoided. I regard these as important provisions because, at present, when one partner in a cohabitating couple dies intestate, the other is vulnerable to losing not only financial support but the home in which the couple lived. By Clauses 21 and 22 in Schedule 2, cohabitants’ 1975 Act claims would no longer be limited to claims to maintenance.

As your Lordships know, the Law Commission is a statutory independent commission established in 1965 with a mission to keep the law “fair, modern, simple” and “cost-effective”. The two reports recommending the proposals in the Bill were fully and carefully researched, and followed detailed and extensive consultations; yet, in all this time since their publication, we have had no government action—never refusal, always a delay.

In 2008, the Labour Government said they intended to consider the evidence about the working of similar provisions in Scotland, which were introduced in the Family Law (Scotland) Act 2006. In 2011, the coalition Government suggested that, at that stage, the Scottish research was inconclusive and that the Government did not intend to implement the Law Commission’s recommendations in that Parliament. In the well-known case of Gow v Grant in the Supreme Court on the Scottish Act, the noble and learned Baroness, Lady Hale, now president of the court, said:

“The main lesson from this case, as also from the research … to date, is that a remedy such as this is both practicable and fair… It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship”.

She concluded:

“‘The Act has undoubtedly achieved a lot for Scottish cohabitants and their children’. English and Welsh cohabitants and their children deserve no less”.

The evidence from Scotland has been overwhelmingly positive. Ireland introduced similar legislation in 2010. Other jurisdictions with similar protections include Australia, New Zealand, Canada and some states in the US, yet still the Government have dithered.

As recently as November 2018, Lucy Frazer, Parliamentary Under-Secretary of State at the Ministry of Justice, stated in a Written Answer:

“The Government’s current priorities are to reform the law on the process for obtaining a divorce in order to reduce family conflict and to extend civil partnerships to opposite sex couples. The Government will be considering how to proceed in relation to proposals made by the Law Commission in the context of any further reforms to the family justice system”.

I simply do not accept that it is not possible for the Government, given the necessary political will, to introduce three desirable and laudable reforms, rather than just two. These proposals have the overwhelming support of family judges, of Resolution, which represents family law solicitors, and of the Family Law Bar Association. It is high time they were implemented. I beg to move.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords) 1:44, 15 March 2019

My Lords, I shall be relatively brief, for I have just one specific, though very important, issue to raise.

I have spoken on many occasions in this House about the urgent need for legal rights to be conferred on family members, particularly siblings, who choose to live together in adulthood, sharing their lives in committed, platonic relationships which in many cases endure until death. They remain scandalously unprotected by existing law, as the noble Baroness, Lady Deech, has also emphasised on many occasions.

Denied the option to form civil partnerships—though, contrary to widespread belief, there is nothing in the civil partnerships legislation to say that any sexual element is needed—they are denied all the rights that both married couples and civil partners enjoy. Yet cohabiting couples who are related by blood are no less likely to be either financially or emotionally interdependent than those whose union is sexual.

The hardships that must be borne by those who live together in a relationship based on family ties range from the denial of shared income tax allowances and pension rights to complications with passing on rented tenancies after the death of the first cohabitant and the denial of the spousal exemption from inheritance tax. Without the last of these, many cohabiting family members who bought their homes jointly decades ago, when property was comparatively cheap, face old age with the anxiety of knowing that they may be forced to sell the home, with all its much-loved associations, to raise inheritance tax when the first member of the couple dies.

Some of the provisions of the Bill before the House today—the right to have an insurable interest in the life of a partner, the right to succeed to a partner’s estate under intestacy rules, and so on—would be of the greatest value to cohabiting siblings and other family members who pair up, whether as companions through life or, as is frequently the case, as carers of an elderly relative. So I ask: why should they be excluded from this Bill simply because their relationship is platonic? Why single out for discrimination the only group of people left who have no access, through any means, to any legal rights and are crying out for them? Why assume that the only kind of relationship worthy of legal protection should be one based on sex, when two family members living together in adulthood in the way I have described so obviously represent a social good?

The Government are soon to extend the right to form civil partnerships to opposite- sex couples. Those who cohabit but are closely related by blood will, shamefully, continue to be excluded from all the attendant rights. Last month, during the passage of the Bill that will bring about the extension of civil partnerships, I said that committed, long-term cohabiting siblings look on with anger and astonishment as the Government continue to do nothing to relieve them of the constant anxieties they endure in the absence of joint legal rights.

This Bill, with its specific insistence that those within the prohibited degrees are to be excluded from its provisions, is inevitably a disappointment to cohabiting family members. It could have been a golden opportunity to put things in a better state for cohabiting family members, who deserve parliamentary and governmental action to remove the discrimination under which they have laboured for so long. I ask the noble Lord, Lord Marks, for whom I have high regard, to reconsider the exclusion of family members from the scope of the Bill.

Photo of Baroness Deech Baroness Deech Crossbench 1:48, 15 March 2019

My Lords, the noble Lord, Lord Marks, and I have one important issue in common. Every year for the past four or five years, he and I have introduced Private Members’ Bills intended to reform family law—and every year, the Government reject them. We have dealt with a series of Ministers, few of them with any experience in family law, and I have the impression that the Government are loath to embark on the major overhaul of family law needed for the 21st century.

As best as I can discover, the average length of a cohabitation in this country is just under five years, according to the Institute for Family Studies; that is, the three-year period provided for in the Bill is shorter than average. Without doubt, parents who are not married before having a child are far more likely to split up than those who are married. This is similar across many countries, some of which give rights to cohabitants while others do not, but most of those countries have fixed and far less discretionary law relating to the division of assets.

The Bill would make the end of cohabitation disputes as expensive and legalistic as divorce. It is drafted with too much judicial discretion, and we know that that leads to a very high proportion of a couple’s assets going on legal costs. Given that cohabitants tend to be the younger and less well-off, they would be open to greater deprivation and more pressure being applied by one former partner threatening to sue unless the other complied with their demands. A cohabitation law is likely to deter even more men, typically, from providing the stability that children need, judging by public attitudes to the prospect of a cohabitation law. I collect comments from the Guardian, such as:

“Do not foist legal obligations on people who have not explicitly chosen to undertake them”;

“Time to respect people’s life choices not limit them”;

“Getting really tired of the illiberal campaigns to compel cohabiting couples into a quasi state-determined relationship”.

People who cohabit have the right to respect for their private lives and decisions—a right breached in particular by the retrospective application of the provisions of Clause 7—and now that civil partnerships for heterosexuals will soon be available, there is no necessity for this law at all. If people will not marry and not enter into a partnership, clearly they wish to be left alone by the law and not boxed into a corner.

I have called this law a bedroom tax, and so it is: share your bedroom and you will have to pay for it. This is thoroughly illiberal. Cohabitation is growing in popularity, maybe because it avoids the heavy financial penalties of a failed marriage and divorce. It is curious that English law attaches such heavy financial obligations to a sexual relationship, no matter how brief, but ignores the equal demand for fairness by siblings, a topic on which the noble Lord, Lord Lexden, whom I fully support, has spoken. It is often said that cohabitants are as committed to each other as married people and that that justifies similar legal treatment, but “commitment” is not the word. Commitment lasts as long as it lasts. What couples need and respect is the express assumption of responsibility, and studies have shown that drifting into a relationship does not mean the same to the partners, especially the men, as the deliberate assumption of responsibility for each other—which, incidentally, is shown by the many cases of siblings living together that your Lordships have had before them.

Another reason this law is unnecessary is that Schedule 1 to the Children Act 1989 provides for financial provision for children, in addition to the Child Maintenance Service. The 1989 Act can operate to provide a lump sum, property or education costs or to transfer the home to the unmarried parent for the benefit of the child, and that is how it should be. We should be worrying about provision for the children of these relationships, not the short-term cohabiting partner. Child maintenance and the unwillingness of fathers, married or not, to do the right thing, has been a stain on our system for ages, and I wish the legal profession were as demanding for reform on that score as it is in relation to the more lucrative asset division between partners.

Turning to the drafting, I highlight first the provisions about retrospectivity. Clause 7 allows former cohabitants to apply with two years of the end, or longer if the court judges the circumstances “exceptional”. This opens the door to a massive number of claims, pressures and costly proceedings to determine whether a situation is exceptional, which is a wide open concept. Under Clause 2, people living together now will find that the law applies to them, even though they had no knowledge of this trap when they started to live together. Under Clause 3, people who continue to live together, although not as a couple, will find that that counts as cohabitation too. Under Clause 14, the court may set aside an opt-out agreement if it is “manifestly unfair”. One could hardly devise a phrase more likely to lead to dispute, especially when our principles of maintenance are undefined and our support law desperately needs reform. What a charter for dispute and expense this is.

Possibly the most unwelcome part of the Bill is that relating to intestacy. In brief, it gives the surviving cohabitant rights over the property of the deceased, which will pit the cohabitant against the deceased’s children, his widow—if there is one—and other close family. The bitterest disputes we see over legacies are precisely these. Cohabiting partners already have rights to claim under the Inheritance (Provision for Family and Dependants) Act 1975, which has been enlarged. The Law Reform (Succession) Act 1995 enables cohabitants of two years standing to claim without proving dependency. Those Acts enable discretion to apportion between the cohabitant and the blood family, whereas under the Bill the cohabitant will take priority.

Some 87% of the population leave less than £500,000 behind them; according to a study by Irwin Mitchell, the average inheritance is very little. If the first £250,000 is taken by the cohabitant, this will mean in most cases next to nothing for the children, who will most likely have been the children of divorce and who were perhaps not properly maintained during the deceased parent’s lifetime. It is a double blow, likely to lead to litigation or pressure for settlement, reducing the available sum still further. The surviving cohabitant may go on to another relationship, but the children of this younger generation, so handicapped in relation to housing and education debt, deserve in my view the first slice of their parents’ legacy.

The Bill will be unpopular with the public once they grasp its extent and uncertainty. It is an attack on the lifestyle of a certain group. Some may not wish to marry each other but to try out the relationship. Older people who live together—as I have heard from Members of this House—but who have refrained from marriage especially to protect their inheritance for their children and not have it forcibly transferred to a new partner, will be very upset by this. We do not have forced marriage in this country; even if there are expectations on the part of one partner, or if one has refused to marry the other, that is no reason to impose a regime on them. Why should a woman with a good career, who is disappointed that her partner will not marry her, have to face a claim by that partner if he leaves her? We should observe the human rights of privacy and respect for family life, which are interfered with by the Bill. Private adult choices should be respected. The claims of children are already legislated for, and there is provision in existing statutes for the surviving cohabitant without damaging the rest of the family. As a society, we want stability for our children, whether their parents are married or not. Extending cohabitation law to shorter than average relationships will not achieve this.

Photo of Baroness Featherstone Baroness Featherstone Liberal Democrat 1:57, 15 March 2019

My Lords, I am very pleased to have the opportunity that this Bill offers to put in place protections for those couples who choose not to marry and not to have a civil partnership registration—although I trust that civil partnerships will soon be available to straight couples—but choose simply to live together.

The reasons couples do that are manifold. Not everyone believes in marriage, and some do not want the weight of religious overtones, the male patriarchy or just the mere formality of it. It may be the case that they are religious and have already been married but their religion does not permit divorce. Maybe they had a bad experience previously with the more formal arrangements. Maybe there are financial reasons for a couple to want to live together, particularly given the price of property and renting. Maybe they just want to try cohabiting as a prelude to marriage or civil partnership; maybe parental divorce has led them to distrust marriage; maybe, as the noble Baroness, Lady Deech, said, one wants to marry and the other does not.

To be frank, it does not really matter why a couple do not want to take the options of marriage or registration. It is a free country and we are, thank goodness, still free to choose the nature of our relationships. In the end it does not matter what I or any of your Lordships think. We are totally entitled to our views—and we clearly have differing views—but it is not the state’s role to prefer one to another. Although the tone of this debate has been quite moderate, in the previous debate in 2014 there was definitely a heavy effort to make sure that marriage was the gold standard—that it was somehow better than living together, and therefore had protections not available to those who did not make the decision to marry.

It is the state’s job to enable and make lawful arrangements to facilitate loving unions—of our choice—and to ensure protection for the participants and their children. I read the contribution of the noble Baroness, Lady Deech, on this same Bill from 2014, and her concern that there would be less willingness to commit to a long-term relationship and that the stress of couple breakdown added significantly to the detriment of children. It is true that most people desire that lifetime commitment, but it is not the protection in law that delivers it, nor necessarily the form which it takes. We need to face the reality of life as it is, not as we wish it to be.

My own nephew died aged 35 as a result of the contaminated blood scandal. I take this opportunity to say thank goodness for the inquiry now in train. For that, if not for Brexit, Theresa May deserves our thanks and praise for going where previous Governments had refused to go. Nick was 35 and had a 10 month-old daughter. He had been with his partner for 14 years. They did not believe in marriage, and civil partnerships were not available, so in a relationship as loving and faithful and enduring as any marriage, they had no rights in law—no support whatever. So I very much welcome this opportunity to move this issue into law and provide that protection.

As my noble friend mentioned, other parts of the United Kingdom are ahead of us. Scotland has had its cohabitation law since 2006, and other jurisdictions have moved on this, including Canada, New Zealand, Norway and France.

As I said, in the last debate most of the speeches against this very modest measure seemed to focus on the desire to make people marry and stay together as the gold standard and as a safe harbour in which to raise children. We know that there is no such thing; we know about the divorce rate and that children are mistreated in married homes as well as unmarried homes. While we may aspire to live happily ever after, that desire applies to most people in whatever arrangement they choose to live.

The truth is that single-parent families are endemic. I am a single parent myself, and being married did not stop my husband running off with someone younger and less attractive—I could not resist saying that. Around 90% of single parents bringing up families are women, and it really should not make a difference to the responsibility that they shoulder whether theirs was a marriage, a registration or a cohabitation. So, while we may mourn family breakdown, withholding protections for couples who choose cohabitation is not the answer.

My noble friend mentioned the law, which is already lenient in terms of the grounds for divorce. If it is now going post haste towards no-fault divorce, the corollary surely is that you can no longer differentiate in law between modes of coupledom. There will be no special sanctions for ending a marriage. If society at large and we as lawmakers accept that marriage breakdown happens and that you cannot make someone stay, and we—quite rightly—remove the threat of the financial penalty for being the guilty party, surely we cannot then turn to those who cohabit and tell them that their choice is less valid or valuable than the choice of marriage.

Of course it would be better if people were more constant, if men and women never strayed from their partners and if the family unit was in perpetuity. But, as I said, we have to deal with the world as it is, not as we wish it to be. Our commitment and mission in this House should be to ensure that men, women and children in cohabiting arrangements have protection on the breakdown of those arrangements—and these are the most modest proposals.

Photo of Lord Northbrook Lord Northbrook Conservative 2:03, 15 March 2019

My Lords, in general I am not especially favourable to the Bill in the name of the noble Lord, Lord Marks of Henley-on-Thames, even though it is eloquently presented. I recognise that, according to the Office for National Statistics, the number of cohabiting couples has more than doubled, from 1.5 million families in 1996 to 3.3 million in 2017. I recognise the Bill’s good intentions and its desire to protect cohabitees in vulnerable situations and to protect children from hardship. As has been recognised, there are gaps in the law that can lead to significant financial vulnerability and disadvantage, especially for a woman, when a cohabiting relationship ends due to separation or death of a partner. I realise that, at present, cohabitants have no right to the equitable division of property or other assets following the breakdown of the relationship, as would be the case with divorce. Similarly, in the case of the death of one of the cohabitants, their partner has no right to register the death—dealt with in part, I believe, by Clause 18—or succeed to the deceased’s estate if they died intestate, dealt with by Clauses 19 to 22.

However, the Bill goes beyond those provisions and creates something of an opt-in provision for cohabiting couples with, as the noble Baroness, Lady Deech, said, a low threshold for cohabitation of a continuous period of three years—although that has been edged up from two years in the original 2014 Bill. That is far too short a period and does not constitute a long-term relationship as referred to by the noble Lord, Lord Marks, when in 2014 he cited the 2008 British Social Attitudes Survey.

I should be far happier, rather than extending rights to cohabitees, recommending that they might consider the benefits of civil partnerships, or even marriage, to receive the automatic benefits which they are currently denied as cohabitants. For couples opposed to entering either of those, I rely on an article from Hughes Paddison solicitors, which recommends the following form of protection. First, they should enter a cohabitation agreement and/or a deed of trust which sets out how capital assets—for instance, the home—are to be owned and resolves any other financial issues, such as division of household expenses. Secondly, they should ensure that each cohabitee has executed a valid will in order to protect their partner’s interests and avoid them making an application under the Inheritance (Provision for Family and Dependents) Act 1975. Thirdly, they should make any additional or reversionary provisions necessary to ensure that any pensions allow payments to be made to unmarried partners. Fourthly, they could take out life insurance policies, having ascertained that they will pay out to unmarried partners—as per Clause 16, as I understand it.

Overall, I agree with the noble Baroness, Lady Deech, who said in 2014 that cohabiting couples will be snared unaware in a trap of laws from which there is no escape, except for the opting-out provisions of the Bill. I agree that the effect of the Bill would be to apply almost the whole panoply of marriage law to cohabiting couples, making cohabitation as expensive and legalistic as divorce. The Bill will reduce the willingness to commit long-term and would greatly increase the stress of couple breakdown.

I also agree with the noble Lord, Lord Farmer, in the same debate that the Bill would discourage marriage and that it would be far more beneficial to rebuild the social fabric to encourage marriage—and, I add, civil partnerships. The right reverend Prelate the Bishop of Oxford—then Bishop of Sheffield—made an interesting point in 2014. He argued that any confusion over the rights of cohabitants should be dealt with by education, not legislation. He also said that the Bill creates a quasi-legal matrimonial structure based on an arbitrary length of cohabitation, a concept which itself is hard to define and has all kinds of unforeseen consequences. I noted the interesting comments of my noble friend Lord Lexden about siblings and those of the noble Baroness, Lady Deech, about the Children Act 1999 covering certain circumstances, and the dangers of the retrospective Clauses 7 and 14.

In summary, although I praise the Bill’s good intentions, I have considerable misgivings about the problems it could create.

Photo of Baroness Burt of Solihull Baroness Burt of Solihull Liberal Democrat 2:08, 15 March 2019

My Lords, this has been a short but nevertheless important and wide-ranging debate and we have had some excellent and thoughtful contributions. I give particular thanks to my noble friend Lord Marks for bringing the Bill before the House again, because it provides extremely important protections for cohabitees and their children, many of whom do not even realise that they need them.

We have made some great advances in recent times and eagerly await the Government fulfilling their promise to bring in the same protection in law for civil partners as same-sex partners, should civil partners choose to legally formalise their relationship but not marry. However, just as not everyone wants to marry, not everyone wants a civil partnership, for all sorts of reasons so carefully outlined by my noble friend Lady Featherstone.

My noble friend Lord Marks spoke about the ignorance of the majority of cohabiting couples, who labour under the illusion that they have a common-law marriage and that this gives them any legal status at all. The Bill is for them. It is for when couples split up and the person who has made the most sacrifice—perhaps caring for children for years or sinking their money into a property or another investment—has no right to financial redress on the break-up, or when one partner dies intestate and the survivor discovers that they have no right to the family home. You never know what is going to happen. These protections, so ably outlined by my noble friend, redress some of the unfairness that can occur towards the partner and their children.

The noble Baroness, Lady Deech, accused the Bill of being illiberal and said that the average length of a cohabitation is short. She took what I consider the worst-case scenario, when a relationship lasts only a short time. That does not address the fundamental wrong done to partners whose relationship has been long-standing and for whom nothing can be done under the current law.

The noble Lord, Lord Northbrook, talked about the steps that cohabitees could take, including cohabitation agreements, deeds, wills, pension arrangements and insurances, but not everyone realises that they do not have the same protections as married people or people in civil partnerships. About half of such couples do not, which is why we need the Bill.

I have huge sympathy and admiration for the noble Lord, Lord Lexden, in his long campaign for cohabitating family members. He talked about the heart-rending situations that can arise. I ask him to consider whether these should fall within the remit of the Bill. It is our view that it is a matter for fiscal reform, and that if we sort out the fiscal situation, we would not necessarily have to muddy the waters by trying to include long-cohabiting family members in the Bill.

My noble friend Lady Featherstone talked about the wide range of instances in which people do not, or cannot, choose a civil partnership or marriage. I am sure the House thanks her for the personal, tragic example of her nephew. She called these proposals “most modest”. I believe that; they do not go as far as the noble Baroness, Lady Deech, suggested in her comment about the panoply of marriage law being lowered on to people by the Bill. The proposals are modest but fair, and cover a whole group of individuals. The number of couples who have never married is growing. They deserve our protection and our care.

Photo of Baroness Chakrabarti Baroness Chakrabarti Shadow Attorney General 2:14, 15 March 2019

My Lords, the debate has been thoughtful and civil. It is nice to be able to say that, not least in the light of the earlier debate and others here and in other places. The noble Baroness, Lady Featherstone, is probably woman of the match for her comments and revelations but, none the less, there is still an element of otherworldliness to our discussion. I am sorry to say it but the elephant in the room is the complete obliteration of civil legal aid, including in family law cases over recent years. People say that talk is cheap, but legislation without the fiscal changes described is only a little more expensive. Family legal aid is in complete crisis, with a minority of people in family cases getting access to advice and representation. Moreover, family courts are under strain, and that is the case even when people have chosen to get married, let alone getting into the territory where people have not.

I do not doubt the good and benign intentions behind the Bill but I cannot help but think that the method of execution slightly misses the target. As the noble Baroness, Lady Deech, and others have pointed out very kindly, the Bill places obligations on people who did not choose them. What is more, it does so on those who may have actively chosen not to take them on, including some women. It is easy to gender this issue but it could place obligations on women, including those who are in a second or third relationship, quite possibly with adult or dependent children. They could be caught just as easily by the need to pay out in a relationship that they have chosen not to make legal or financial. That really needs to be borne in mind.

I take seriously the comments of the noble Baroness, Lady Deech, about generational injustice and children being the priority. It would be one thing if this Bill had been targeted on protecting children or adding to the protections for the children of a cohabiting relationship. However, what it seems to do is place, if not the full panoply of marriage rights, nevertheless quasi-marital rights on people who have chosen not to take them on, in an age when we are quite rightly moving towards expanding the nature of marriage to include same-sex partners and so on. That needs to be considered. As the end of the magical and arbitrary three-year period looms, as the Bill stands, it would put pressure on people who have chosen a slightly more fluid arrangement than marriage or civil partnership either to opt out and pay a lawyer because they are not going to get legal aid—the noble Baroness, Lady Deech, pointed out that this is about relatively small sums of money, but they will have to pay a lawyer, which is quite a red flag in an embryonic relationship anyway—or perhaps they will have to split up and thus avoid the regime. I cannot believe that that hits the target of protecting the vulnerable and I cannot believe that that is the intention that the noble Lord, Lord Marks, is trying to promote. Moreover, it will of course mean more work for courts that are already under strain. It is very easy, in this wonderful and otherworldly place, to salve our consciences and signal virtue by creating more and more intricate, byzantine rights and obligations which applications to the courts will sort out, but the courts are under strain.

For all its noble intentions, the Bill or something like it might work if proper legal aid and publicly funded legal education were in place. It is all very well to talk about the ignorance of the majority, but we must be a little careful about language like that. We need to fund education, advice and reputation for the majority. Equally, with such provision, a Bill such as this might not be needed. I hope that I will be forgiven for saying that the Bill in its current form at this time slightly misses the target.

Photo of Baroness Vere of Norbiton Baroness Vere of Norbiton Baroness in Waiting (HM Household) (Whip) 2:19, 15 March 2019

My Lords, I begin by thanking the noble Lord, Lord Marks, for introducing this Bill and enabling the House to debate the important questions of whether new rights should be provided for cohabiting couples and, if so, what those rights should be.

I will start by giving a brief overview of the Bill’s proposals. Currently, cohabitants have some legal protections when their relationship comes to an end, but these are more limited than those of married couples and civil partners and depend on the individual circumstances of each case. With certain exceptions, a cohabitant can acquire property rights in relation to his or her fellow cohabitant only by entering into a contract or trust under the civil law. Similarly, cohabitants’ legal rights are more limited than those of persons who are married or in a civil partnership if one of the cohabitants dies. In cases where a cohabitant has died and made a will, their surviving partner may inherit, but where a will has not been made the law gives priority to any surviving blood relatives, such as parents, siblings or children.

The Bill before your Lordships’ House today defines cohabitants as two people who have lived together for at least three years, have a child or are recognised in law as having a caring responsibility for a child. Part 2 of the Bill seeks to make provision for financial settlement orders in certain circumstances. The court could do so only if it were satisfied that the couple had ceased living together as a couple and, as a result of qualifying contributions the applicant had made, either the respondent had retained a benefit or the applicant had an economic disadvantage.

I am very aware of the interest in these matters and in family law more widely in your Lordships’ House, and of the considerations given to proposals today and during other debates. The noble Baroness, Lady Deech, questioned the wide discretion that would be given to the court. How the court makes decisions of the kind in these proposals will continue to draw sharp differences of opinion. For their part, the Government are considering what, if any, changes might need to happen to the law in this area. Across the range of opinion of Members of this House, family judges and legal practitioners, there does not as yet seem to be any clear consensus on how to limit the court’s discretion in practice.

Then there is the issue of the opt-in. Under the Bill, qualifying cohabitants are automatically opted in to the Bill’s framework of rights in the event of separation unless they have made an opt-out agreement during their cohabiting relationship. This point-out agreement can be valid only if each person in the cohabiting relationship,

“has separately received legal advice”,

and confirmed in writing that they have understood the effect of the agreement. Some might feel these proposals are somewhat costly and perhaps a little bureaucratic. This was noted eloquently by the noble Baroness, Lady Chakrabarti, and it was a pleasure to have her on my side—sort of—for a change.

The Bill also seeks to give cohabitants certain rights on the death of one of the couple. It gives the survivor the same rights to inherit under the intestacy rules, and to make claims under the Inheritance (Provision for Family and Dependants) Act 1975, as a spouse or civil partner. It also gives the surviving cohabitant the same rights as other family members in relation to the registration of death. Lastly, the Bill gives cohabitants equivalent status to spouses in relation to certain types of insurance payments and policies, and the payment of damages in the event of a fatal accident.

The Government understand the reasons of the noble Lord, Lord Marks, for seeking these provisions. However, for a number of reasons the Government have reservations about the Bill. The proposals in this Bill could be seen by many as taking away their fundamental freedom to be in a relationship with someone for whatever length without the state imposing obligations on them. The Bill therefore raises a fundamental question about the role of the state in relationships that have previously had little in the way of a legal regime. The debate today has been penetrating but has also revealed a divergence of views. There is much more work to be done before Parliament can resolve this issue.

Some also argue that for many people cohabitation is a lifestyle choice rather than something in need of a legal fix. A significant number of people today choose to live together with their partner without marrying or formalising their relationship in another way. For some, the choice to cohabit may reflect in full or in part their rejection of the rights and responsibilities that come with a legal union. Some couples may resent the idea of incurring financial responsibilities to each other not by choice but simply as a result of the way they have chosen to live and of the period over which they have chosen to live that choice. Children, of course, are already entitled to child maintenance regardless of the marital status of their parents.

There is a question, too, of how far it would be understood that a person could suddenly find themselves faced with financial obligations to their former partner because they were unaware of their new legal status. In that sense, the Bill introduces a new risk of a cohabitant unknowingly acquiring legal responsibilities to another person. The state and the law do not regulate the formation of cohabiting relationships in the same was as they do for marriage or civil partnerships. In other words, when did the relationship start? On what date did you actually start cohabiting? This is enormously complex and very difficult to define.

The legal challenge remains how to equip prospective cohabiting couples to make informed choices. The Government acknowledge that there is a widespread belief that there is something called “common-law marriage”. The National Centre for Social Research reported in January that about half the people it surveyed believed that this was the case. However, as mentioned by my noble friend Lord Northbrook, the solution to this is perhaps not more legislation but education.

There is also a need to recognise how the legal landscape is potentially changing. For example, proposals are being considered separately in Parliament for extending civil partnerships to opposite-sex couples. These proposals, which are supported by the Government, may have a profound impact on the number of people who still choose to cohabit rather than having a formal legal relationship.

On civil partnerships, I acknowledge my noble friend Lord Lexden’s tenacity in pressing for protections for siblings who live together, and the support shown to him by the noble Baroness, Lady Deech. The House will have a further opportunity to debate this matter next week when my noble friend has an Oral Question. I think that the noble Lord, Lord Marks, would not agree that protections for siblings should have a place in this Bill. This was noted by the noble Baroness, Lady Burt. While I appreciate my noble friend’s interest in inheritance, I do not see that the Bill’s other provisions, particularly on providing redress, would be suitable for siblings. Again, the range of opinions within and beyond your Lordships’ House seems to indicate that there are still questions to be resolved about the extent to which family law should apply to relationships outside marriage and civil partnership.

The Government are also concerned that the Bill’s proposals could lead to more cases coming to court, rather than providing certainty and clarity for the people it aims to protect. There is nothing to suggest that separating couples would settle financial matters amicably under these new arrangements. Indeed, it could be suggested that, given a possible lack of clarity, it would be the reverse. The Government’s view is that coming to court to resolve a dispute about a private family matter is best avoided. Indeed, one of our priorities is to help more separated couples and parents resolve matters concerning children and financial settlements on divorce out of court, provided that it is appropriate and safe to do so.

Finally, I must conclude with the Government’s position in relation to the proposals put forward in the Law Commission’s two reports on cohabitation. In broad terms, the Bill implements the recommendations in those two reports. The first, Cohabitation: The Financial Consequences of Relationship Breakdown, was published in July 2007. The recommendations in this report are to give cohabitants who have lived together for a qualifying period—it was thought that between two and five years would be appropriate—rights to obtain financial remedies from the court not provided for in the current law. Cohabitants who share a child would not be required to meet this minimum duration requirement.

The second report, Intestacy and Family Provision Claims on Death, published in December 2011, makes a number of recommendations. The Bill proposed by the noble Lord, Lord Marks, would implement those recommendations about cohabitants. The previous Government had already implemented the other recommendations in this later report through the Inheritance and Trustees’ Powers Act 2014, which came into force that year.

The overall effect of the Bill and the Law Commission’s recommendations in those two reports would be to create a substantial new scheme of legal rights and obligations for cohabiting couples. The Government would need to carefully consider the proposals put forward in the two reports before undertaking any review of this area of law. At present, our immediate priority for family law is to reduce ongoing family conflict following the irretrievable breakdown of a marriage or civil partnership. We will also be supporting the extension of civil partnerships to opposite-sex couples, and we are studying the issues around financial provision following divorce or civil partnership dissolution.

We want to make progress in the field of family law, and I know that my right honourable friend the Secretary of State for Justice and my honourable friend Lucy Frazer both listen intently to what this House has to say. I thank the noble Lord, Lord Marks, and all noble Lords for their contributions today. There are strong opinions on all sides, but all noble Lords will recognise that calls to introduce legislation in any new area must be balanced against arguments about ensuring that the individual freedoms we all take for granted are protected.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice) 2:30, 15 March 2019

My Lords, I am very grateful to all who have spoken in this debate, and particularly to the Minister, the noble Baroness, Lady Vere, for her helpful explanation of what the Bill and the Law Commission’s recommendations do. I said at the outset that the Bill only implements the two Law Commission reports. I re-emphasise that those reports were consequent upon long and detailed consultations, taking evidence in which a very wide variety of opinion was expressed. Although there was much in the noble Baroness’s speech with which I agreed, there was a certain amount with which I disagreed, which will not surprise her. However, one of the fundamental points she made was that there was no consensus. Among the legal professionals, the judges, the Bar and the solicitors’ professions, there is a very wide consensus on this issue. Of course there are dissenting voices, but there is a very wide consensus that the Law Commission found a very good balance.

I emphasise that the Bill is about choice. It is about allowing people to choose between marriage, civil partnership and cohabitation. Those choices are made by people and they are to be respected. However, the point of these very modest proposals is to ensure that, if people choose cohabitation, they are not subjected to the unfair disadvantage that flows from taking on obligations—looking after children, providing assets and providing contributions, whether in kind, money or care—that then leave them bereft of support when the relationship breaks down. The Law Commission’s proposals and this Bill are designed simply to redress that balance.

I do not agree with the noble Baroness, Lady Deech, on two points. First, I do not agree that the existence of judicial discretion necessarily means that more cases are going to court. That is not the experience. Indeed, although some very well-known and high-profile cases end up in expensive disputes, the vast majority of divorce cases settle amicably because divorce lawyers and parties understand roughly what will happen. The experience of Scotland—

Photo of Baroness Deech Baroness Deech Crossbench

If the noble Baroness, Lady Shackleton, were here, she would say that the settlement costs a fortune. We do not know how much it is in legal costs, but the fact that people do not go to court does not necessarily mean that a lot of money is not spent.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, I agree with that but it will not have escaped your Lordships’ attention that the noble Baroness, Lady Shackleton of Belgravia, has a particularly niche practice in an area where costs do not always matter a great deal. If one is talking about the generality of cases, I am not sure that her experience—knowing her from a professional as well as a personal viewpoint—really adds to the debate. Most cases settle; the experience of other jurisdictions—Scotland in particular—suggests that. There have not been many contested cases in Scotland. Gow v Grant was one that got to the Supreme Court; it was very important and high profile, but I suggest that what the noble and learned Baroness, Lady Hale, said in that case is an important lesson for us all.

I draw attention to some of the points made by the noble Lord, Lord Northbrook. Having gone into the reasons for the Bill and the unfair disadvantage that it was designed to offset, he then pointed out that the advice of solicitors is that people in cohabiting relationships can make cohabitation agreements, opt-out agreements and wills. Those protections enable people to give effect to their choices. I take the point of the noble Baronesses, Lady Chakrabarti and Lady Vere, that these cost money, but I suggest it is only a limited amount if you are simply certifying that you have had advice, much as people do when taking out a mortgage. The real point, made by my noble friends Lady Featherstone and Lady Burt, is that while people can choose, many do so against a background where they believe wrongly that they have relief or rights anyway as part of a common law marriage. They are then stuck in that belief and led to disadvantage as a result.

I will address a few more points briefly. The point about intestacy is that it is unfair that the children, parents and siblings of those in former marriages take precedence in all cases over cohabiting partners, to the extent of being able to evict those partners from their houses. That is wrong. We know that people die intestate. We know that a very large number of people do not make wills, even though anyone would tell them that they were well-advised to do so. The effects of that can be very damaging.

The noble Baroness, Lady Deech, said that this would be unpopular, but it is not unpopular in Scotland, Ireland, Canada, New Zealand, Australia or other areas that have this legislation or something like it. Of course there are dissenting voices, but overwhelmingly, this sort of relief is popular. Last time, the noble Lord, Lord Northbrook, commented on the contribution of the noble Lord, Lord Farmer, to say that there is no evidence—indeed that there is evidence to the contrary—that protections such as this have an adverse impact on marriage. The evidence from studies is that there is no impact on the rate of marriage from changing the law relating to cohabitation in a jurisdiction.

The point made about the Children Act 1989 is a bad one. Schedule 1 claims under that Act can be brought only in respect of minor children. We have very many cases where, as people get older and their children leave, they are left in their home—if left by their cohabitating partner—with no support. Those are very damaging cases. A claim under the Children Act will not help them if they have given up their careers and lives to look after children until the relationship suddenly breaks down later on. Those mothers—it is usually but not always mothers—need protection.

Finally, as everybody does, I have a great deal of respect for the point made by the noble Lord, Lord Lexden, and for his tenacity in campaigning for the rights of siblings and blood relatives. But I think he knows—the noble Baroness, Lady Vere, said that I would probably take this view—that while I agree with every point he made about the unfairness to siblings and blood relatives of many of the fiscal provisions of our law that leave such blood relatives at a significant disadvantage during life, on succession and in relation to landlord and tenant matters, this is not the Bill for them. As the noble Baroness, Lady Vere, said, this is a Bill for cohabitants living together in an intimate relationship.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

I will give way at the end of the next sentence because I hope to offer some further measure of agreement with the noble Lord. I urge the Government to look very carefully at the points that he has made, take them to the Treasury and see what can be done to ensure that the significant unfairnesses to which he points are redressed by fiscal measures.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords)

I thank the noble Lord for his powerful and eloquent support for the basic points that I was making. Perhaps I may express the hope that, should I bring forward another Private Member’s Bill to try to redress the injustice for family members, I can look forward to his powerful and eloquent support on that occasion.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, I am bowled over by the noble Lord’s praise and hope of support, and of course I will give it to him. I agree with his points but not in the context of a Bill about intimate relationships such as cohabitation.

I believe that I have dealt, probably at greater length than I should have done, with the questions raised in this interesting debate. I accept the points made by the noble Baroness, Lady Chakrabarti, that we have got into a terrible state with legal aid, but I do not think that that undermines the Bill.

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

House adjourned at 2.41 pm.