Cohabitation Bill [HL]

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.