Cohabitation Bill [HL]

My Lords, it is a pleasure to follow the right reverend Prelate, who has done so much to support the institution of marriage within his work in the Church of England. Like him, I pay tribute to the noble Lord, Lord Lester, for giving us an opportunity to discuss this important issue. Whatever the argument about this particular Bill, there is widespread agreement that when cohabiting couples split up, the children of such a union must not suffer financially and that proper laws must be in place to ensure that. This, for example, is the position of the Church of England, as expressed in the General Synod resolution and in its response to the Law Commission consultation on the subject. The category "cohabiting couples who have children" accounts for a good number of people. In 2006, for example, there were 1.49 million dependent children of cohabiting couples. However, there the agreement seems to stop. I refer not so much to what the right reverend Prelate said today in his own person, but to what the Church of England has said through its official documents. It seems reluctant to support the Bill as it now stands because, in addition to making provision for children, it creates, in its view, a new category of relationship—those who have lived together for two years or more—which is seen as a threat to marriage. I have a number of questions to ask about that. First, does it really create a new legally defined form of relationship, or is it in fact simply a legal criterion, which judges will need to use in deciding issues of financial settlement? I appreciate that if we were talking about a couple saying to each other, "I am going to commit myself to you for at least two years on the understanding that, if after that we break up, there will be an equitable settlement", and this commitment had legal basis, then we would indeed be talking about a new legal category of relations. As has already been referred to, if this was an opt-in scheme, again we would clearly have a new kind of legal relationship. However, we are not actually talking about that. We are not talking about the basis on which the couple entered upon their relationship; we are talking about the consideration that a judge would use in the event of a break-up being brought before him. The first question he will have to ask is simply: do they qualify; have they lived together for at least two years? The Church of England’s position is that for cohabiting couples without children the judge should only be able to authorise financial support for one of the couple if it can be demonstrated that there is going to be manifest and substantial injustice as a result of the break up. This is in contrast to the Bill as it now stands, in which financial settlement would be made if the judge considered it just and equitable to do so. My first question, and it is a genuine question, is whether, if we are going to talk about a new legally defined relationship, and I have called that into question, this criterion of manifest injustice would not, at least by implication, just as much create one as does, so it has been suggested, the Bill. For if the judge is going to determine whether or not there is manifest and substantial injustice as a result of the break-up, he or she still has to refer to a relationship of some kind. Presumably, it would not, for example, be applicable to two friends or a brother and sister living together, or would it? If so, what would be the implications of that? My second point, and one which goes to the very heart of the matter, is whether, if it is agreed that a new legally defined relationship would come into being—I have questioned whether it would—this would indeed be a threat to marriage. The papers produced by the Church of England rightly very much have this concern in mind, but I would like to probe this a little. Let us ask why people choose to cohabit rather than marry. There are clearly a number of rather different reasons. One, the most idealistic, is that true love does not need the sanction of either church or state, and the couple simply wish to commit themselves to one another in, as it were, the purity of their express love. That reason may be coupled with a very strong ideological objection to state or church-sanctioned marriage. However, either way, the introduction of a new legally defined relationship is not going to affect their view of marriage. It will not make them either more or less inclined to marry; they are opposed to the whole institution anyway. A second category of couple who cohabit are those who have had a bad experience of marriage. Either they were the children of unhappy parents, or they have had a painful first marriage themselves. Again, I suggest that the introduction of a new legally defined relationship is not going to change their attitude to marriage. They have experienced it as a destructive institution with which they want nothing to do. Then we come to the third category: people who live together because, for personal or practical reasons, they do not feel ready to commit themselves to a public ceremony. They may think that they are too young; they may have career commitments; or they may feel that there are so many pressures on marriage today that it is best to see how the relationship goes before finally committing themselves to marriage. I think that it is this category or person that the noble Baroness, Lady Deech, particularly had in mind. Many couples in this category will have marriage in mind when they start to live together, and many go on to marry. However, in the early stages it is, as it were, "not yet". Is the introduction of a new, legally defined relationship likely to make people in this category less likely to enter into a marriage? It might if they already have half an eye on the financial consequences of a breakdown in their relationship; perhaps this is what the noble Baroness had in mind. They might think that in the event of a break up, as there would be an economic safety net when cohabiting, marriage is not going to offer a great deal more in the way of financial protection. I suppose that they would be in the position of those contemplating pre-nuptial financial agreements. Very prudent, no doubt, but not very romantic—and you wonder if people going into a relationship with such a hard-headed view are really in the right relationship for them in the first place; at least, frankly, I do. However, I concede that there may be some hard-headed, practically minded cohabitees as there are hard-headed, practical devisers of pre-nuptial agreements. But I suggest that they are not many, and that they hardly affect the argument before us today. The fact is that those cohabiting for the third set of reasons I have suggested have their own reasons for so doing. The introduction of a new, legally defined relationship of cohabitation—if that is what it is—is not going to sway them either way in their attitude to marriage. They will probably have marriage in mind, but they will move on to it in their own way at their own time. They will not be inclined to stay just as they are because of the introduction of financial safeguards for cohabitees who break up. I regard the institution of marriage as one of great worth in its own right, standing with a truth and luminosity that is both natural and Christian. Time does not allow me to expand on this. I also regard it as proper for our society to give marriage a special place in our law. I am, in fact, sympathetic to the argument of the late Lord Devlin in his famous debate with Professor Hart some years ago, when he said that our law quite rightly reflects the understanding of marriage given by our history, culture and religion; that it is, as he put it, the house we inhabit. Nevertheless I recognise that, as legislators, it is right that we should also approach issues like this from a utilitarian, cost-benefit analysis point of view. From that point of view, it is also true that the institution of marriage serves the common good of our society better than any other alternative. I am a strong believer in the institution of marriage, first and most importantly because its truth and beauty stand in its own right, but also because our law rightly reflects our history, culture and religion, and thirdly because of the economic benefits it brings to society as a whole, compared to any other alternative. If the institution of a new legally defined relationship of cohabitation—if it is this—served to undermine the place of marriage in our society, I would be very hesitant about adopting it. But for the reasons I have suggested, it does not seem to be the case. The introduction of this new legally defined relationship—if that is what it is—will not have the effect of deterring people from getting married. If they are cohabiting, they will continue to cohabit until, for a variety of reasons, they decide to marry, if they do. If they do so, again it will be for a range of very personal reasons. As has been mentioned, it is true that the number of marriages is falling. There are a number of complex reasons for this, but introducing this Bill will not increase that number, nor will refusing to introduce it shore up the institution of marriage. Besides, as I have suggested, the value of the institution of marriage exists in its own right, and the reasons for it, if they are persuasive, as I believe they are, are persuasive in their own right. I asked, first, whether the Bill does in fact create a new legally defined relationship, or whether, rather, it does not simply supply a judge with appropriate criteria if cases come before him looking for a proper financial settlement. That question can be answered only by the lawyers among us. Secondly, I have asked whether the criterion suggested by the Church of England that such a settlement should be for manifest and serious injustice only is so very different from that suggested by the Bill, in that if there is a new legally defined relationship presumed by the Bill, there is also one, by implication, in the alternative put forward by the Church of England. Thirdly, I showed that there are different reasons why people cohabit, and suggested that the Bill would not make them either more or less likely to marry. Finally, I believe that the reasons for marriage have cogency in their own right, and that making legal provision for cohabitees whose relationship breaks down, even if they do not have children, does not detract from the force of those reasons and does not undermine the institution.