Cohabitation Bill [HL]

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.