Cohabitation Bill [HL]

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.