Cohabitation Bill [HL]

My Lords, I am a convert to the importance of regulating some aspects of cohabitation. Therefore, I support the Bill in principle. I assume that it relates to those who wish to have a sexual relationship by way of cohabitation. That is clear from the fact that one aspect of it clearly deals with such couples having children. I very much support marriage. I have been married for longer than the noble Lord, Lord Lester—some 50 years with a very long-suffering husband. I agree with a great deal of what the right reverend Prelate and the noble and right reverend Lord, Lord Harries, said. I do not believe that marriage will suffer as a result of the Bill. I did once, and I own up to being wrong. I entirely agree with all the reasons that the noble and right reverend Lord gave, which he set out very clearly, although I have not done the same degree of work on the measure. As the noble Lord, Lord Lester, said, the experience of other countries is that marriage has not been affected by such a measure. If it had, I would be unhappy to support the Bill. However, we need to remember that marriage, according to the statistics, thank goodness, is more stable and longer lasting, and provides something which, as the noble and right reverend Lord said, those of us who are married are glad we are part of. I profoundly disagree with the noble Baroness, Lady Deech. She is unjust to the lawyers who support this Bill. It is important to remember that not only did the Law Commission propose a somewhat similar Bill, but the Family Law Bar Association, Resolution—formerly the Solicitors’ Family Law Association—and the Law Society supported it. They are not supporting the Bill only to get more shekels in their pockets. I declare an interest as, and am proud to be, an honorary member of Resolution. It has many lawyers dedicated to looking after unhappy couples after their relationship has broken down. They have a superb protocol that puts the welfare of children first when parties’ relationships break down, and their duty is to give unpalatable advice to their clients if the breakdown is not in the interests of their children. I do not believe that the support given by the FLBA, Resolution and the Law Society is based on money grabbing. Of course there are lawyers who make a great deal of money out of divorce, but one aspect of the Bill is that it uses the phrase "reasonable needs", which went out some years ago as regards marriage, divorce and post-divorce settlements. Footballers’ wives get large sums of money, because there is no restriction on what can be granted in the discretion of the judge. However, the discretion of the judge under this Bill would be limited to what used to be called "reasonable needs" and for a limited period. Another reason why I profoundly disagree with the noble Baroness, Lady Deech, is that I think she does not recognise the very real problems on the ground. Lawyers recognise them, and I hope noble Lords will forgive me for saying something as a former family judge for 35 years about my experience in trying cases. There are two sorts of women who do not necessarily know their rights or understand what they are letting themselves in for. One sort is educated and does not have the knowledge, but there are a large number of relatively uneducated women; I am not being patronising or condescending in recognising that they need help. There is a very real problem, and I have met it in the cases that I have tried. There is an unsatisfactory and unfair situation for women and children, and occasionally perhaps for disabled men, and there are vulnerable groups whose needs and human rights are not being met by the present state of the law. My experience is very similar to the Burns case referred to by the noble Lord, Lord Lester of Herne Hill. I have dealt with similar cases again and again. I should tell you what happens. A couple live together for, say, 17 years—as I remember in a particular case—and the woman subordinates her career to the man. She takes some part-time work, she brings up their children and they live as if they are married, but they do not get married. At the end of 17 years the man finds a younger woman and walks out—except he does not just walk out, he tells her to get out. When she says, "But I have a share of the house", he says, "The house is in my name. You have not put any money into it. You are out and I will pay something for the children". He may or may not do that, but he does not pay a penny for the roof over her head. She becomes a burden on the state. Someone has to house her, because she is a priority housing case; if he does not pay, her children are in the position of children of married couples whose fathers do not pay, but she has no rights. There is obscure and very complicated property law of the constructive and resulting trusts. As a non-Chancery lawyer, I have fought my way time and again through these resulting and/or constructive trusts to try to find whether a particular woman had put in sufficient money, or there was sufficient agreement between them, so I could make findings of fact that there were agreements that met up to a trust which included her having a share of the house. In 95 per cent of cases, I failed. I am astonished at my noble friend Lady Deech saying what she said, as she is a very distinguished academic lawyer, but she has not had these cases on the ground, as I have. She has underestimated or overlooked the state of property law in relation to people, mainly women, who do not have an interest in a house. That is the major point that the Bill is attacking. It is to be congratulated on attacking it, and that is the point that the Law Commission put forward. The Church of England paper, which I read with interest, states that this would be more expensive on legal aid. It is not a point that has been taken, except by my noble friend Lady Deech. The present law, where women try to have an interest in a house, has cases that are long and complicated and that need judges who understand the law, and they cost a great deal of money. The Bill would very much simplify the situation. The cases would be quicker and cheaper for the state as well as the individual and, almost certainly in many cases, they would have to be settled. The most important point is that the children of the couple who do not marry but live together for a number of years would be protected by the Bill in a way in which they are not protected now. If the primary carer is, as in most cases, the woman—most men expect the woman to be the primary carer—that woman will have no recourse to accommodation and she may end up, as we know perfectly well, despite being priority housing, in bed and breakfast accommodation with relatively young children who are very difficult to manage.