Cohabitation Bill [HL]

My Lords, on behalf of Her Majesty’s Government, I thank the noble Lord, Lord Lester, for the considerable work that he has expended on the Cohabitation Bill, and for introducing it to this House, giving rise to what has been a fascinating Second Reading debate about its terms. I also commend the intention behind the Bill, which I understand, which is to provide financial support to couples who live together, when their relationship comes to an end. As the noble Lord knows only too well, the Government have had this issue in our sights for some time. Noble Lords will remember that we identified it as an issue that needed to be addressed and asked the Law Commission to look at it very seriously. I acknowledge that the noble Lord made that plain in his remarks. I am therefore by no means surprised by the support of my noble friend Lady Turner for the Bill. It may be helpful if I clarify some of the legal issues of note before I go on to explain to the noble Lord, Lord Lester, why, I regret, I am unable to support the Bill. First, on what the noble Lord said about void and voidable marriages, he will know that if a marriage is void—that is, within prohibited kinship or through failure to comply with the Marriage Acts—financial relief can be given. Where people undergo a purely religious marriage, it is invalid if it does not comply with the Marriage Acts and is not registered, as was referred to by the noble Baroness, Lady Afshar, although it is not quite as she described. Marriages contracted in countries where polygamous marriages are valid are recognised, but polygamous marriages contracted in England and Wales, where polygamy is not recognised, are invalid. I reassure the House that the Children Act has made significant improvements in our ability to give support and make financial arrangements for children. Indeed, we have virtually eradicated the adverse impact of illegitimacy in relation to maintenance and inheritance by a plethora of proceedings that I will not burden the House with now. We have substantial protection for children. I do not detract in any way from those who rightly described some of the real difficulties that women who are not aware of the real consequences of not marrying face when they discover them. However, it is important for us to look a little at the history of what we have done to try to address that issue. Your Lordships will know that in 2006, the Department for Constitutional Affairs, as it then was, commissioned research that suggested that some people argued for legal reform in the areas of rights to property and other assets, recognition of non-financial contributions and parental responsibility. The research showed that views about whether cohabitants should have the same or similar rights as married couples were very diverse. The diversity of view was clearly exemplified by the noble Lord, Lord Lester, in his excellent speech setting out why he wants the Bill, and the impassioned and erudite riposte by the noble Baroness, Lady Deech, giving all the reasons why she thinks we should not have such a Bill, supported by the noble Lord, Lord Henley. The research suggested raising awareness about the legal position of cohabitants and wider use of cohabitation agreements, or other ways of formalising arrangements, as additions or alternatives to legal reform. Your Lordships will know that we are considering how we should respond. The Government have asked the Law Commission to look at the whole question of matrimonial property agreements, including prenuptial agreements and agreements made after marriage. In addition, as has already been referred to, in 2005 the Ministry of Justice, as it now is, asked the Law Commission to consider further the legal position of cohabitants when their partnership ended. Its report, Cohabitation: The Financial Consequences of Relationship Breakdown, was published in July 2007 and recommended a new scheme entirely distinct from that which applies between spouses on divorce. The scheme aims to provide a sound basis on which to address any hardship and other economic unfairness that may arise when a cohabiting relationship ends. The comments made by the right reverend Prelate the Bishop of Winchester rightly concentrated on hardship and disadvantage. The noble and right reverend Lord, Lord Harries of Pentregarth, interestingly introduced the idea of manifest and substantial injustice as a criterion on which financial relief should be based. That very much goes to support the Law Commission’s approach of directing attention to the mischief that so many of us have wished to address. The Law Commission did not believe that all cohabitants should be able to obtain financial relief in the event of separation. Instead it recommended that a remedy should be available only where the couple satisfied certain eligibility requirements and had not agreed to disapply the scheme and the applicant had made qualifying contributions to the relationship giving rise to certain enduring consequences at the point of separation. Noble Lords will know that provisions for cohabitants to receive financial provision when relationships break down were introduced in Scotland in 2006. This protection is very different from that given to married couples. It is based on the concept of compensation for losses incurred, and the share of gains accrued, as a result of the cohabitation together. This Government would like an opportunity to assess how the Scottish provisions operate in practice before considering what might be the best approach for England and Wales, which is a much larger jurisdiction. I heard what the noble Lord said about it not materially impacting on marriage and there being very few cases so far. We understand that the Scottish Executive have not yet set a timetable for the evaluation of their legal provisions for cohabitants but that they do intend to evaluate them. We feel that the Bill introduced by the noble Lord, Lord Lester, goes further than the Law Commission’s proposals. The Law Commission’s report looked at addressing hardship, but the Bill is about dividing assets in a manner that is akin, but not identical, to the Matrimonial Causes Act 1973. It is fair to say that we have concerns about the Bill’s provisions. We believe that to support it would be to take a wrong approach towards addressing the mistaken perception that cohabitation confers a quasi-marital legal status. Although we entirely accept that that is not the intention of the noble Lord, Lord Lester, the provisions will be likely to result in costly and complex legislation, and that is not sustainable. The impact and the numbers affected would be significant. According to the 2001 census, the number of couples living together exceeded 2 million, and analysis suggests that cohabiting couples are more likely to separate than married couples. We believe that the approach adopted in the Bill would be likely to generate litigation on a large scale, with a vastly increased burden on individuals, the legal aid fund, the courts and judicial resources. We are also, importantly, dealing with the question of an individual’s freedom of choice, though I would perhaps not describe it quite as the noble Baroness, Lady Deech, did, as a "corner of freedom". In the Government’s view, cohabitants should have a choice about when to change their legal status in relation to another adult. Any alteration of that legal status should not be dependent on the taking of limited legal advice, with that advice itself being subject to change over time. However, I do not suggest for a moment that those putting forward these provisions do so on the basis of wishing to make more money for lawyers. I declare an interest as a family lawyer who has been a member of the Family Law Bar Association. As someone who has worked closely with solicitors from a similar discipline I can say that the intent of family lawyers is to try to assist families and children to resolve their issues smoothly and in a way which is beneficial to the parties and not to their own pockets. So I cannot agree that that was the intent behind the provisions. None the less, they would be costly. Young people often enter into relationships that they do not intend will end in marriage. As other noble Lords have said, these are often transient relationships that a person may repeat two or three times before choosing someone whom they wish to make their lifelong partner and/or marry. We believe that a better approach would be to seek to correct the mistaken perception rather than to change the law to match the mistake. The Bill builds-in the involvement of lawyers in a way that we do not believe is appropriate. It would create incentives for going to court and fuel the litigation culture, and that runs counter to the Government’s view that only those cases that require judicial intervention should come into the justice system. Instead, as has already been said, there should be an encouragement of mediation and alternative dispute resolution to settle these conflicts in both family and civil matters. Indeed, further to the various government initiatives to help families resolve parental disputes when they have turned to the courts for help in deciding who a child should live with and see, some 40 per cent of the orders—28,000 in 2008-09—are made by consent. We believe that sufficient provision for financial and property protection is already available to couples who live together, with the principal barriers being ignorance and, sometimes, regrettably, inertia. I am sure that your Lordships will also appreciate that in addition to those concerns, in practical terms, we already have a very full and challenging legislative timetable. Of course I hear the plea, "Could we not squeeze just one more little thing in?". I am grateful that I am not the business manager and do not have that burden placed on my shoulders. However, I do think that it would be a bit of a challenge. Although more needs to be done, we are already doing as much as we can to address conflict within families, stabilise relationships and reduce the trauma to children. I would not say that our work is finished, but the provisions in the Bill are somewhat at odds with the work we are doing with families and vulnerable groups to protect them better and help them to build stable family lives. We are spending significant sums focusing on the National Offender Management Service, which delivers a broad range of interventions to address particular risks. I say that because we are concentrating on parenting and relationship skills, and spending appropriately on training, education, work and matters of that sort. In addition to the initiatives we started, in January 2005 the Government published Parental Separation: Children’s Needs and Parent’s Responsibilities—Next Step, which sets out our plans to deliver a range of measures designed to help separating parents in dispute to decide who a child should live with and see and to reach agreement about future parenting arrangements. Research has shown that when separation goes badly, in particular where children are drawn into parental conflict, the effects can be very damaging regardless of whether the parents are married. The cross-government work has delivered improvements in the information available to parents and a greater use of alternative dispute resolution mechanisms, such as mediation and conciliation at the start of court proceedings delivered by the Children and Family Court Advisory Support Service. We continue to promote these methods as a better way of reaching agreement than through contested court hearings. We have issued self-help guides such as Putting Children First: Parenting Plans, a guide to separating parents to help them work out the best possible arrangements for their children by showing them the various arrangements that have worked well for different families in different circumstances. The guides have an average distribution of 4,800 per month and should be available in solicitors’ offices, court waiting rooms and GP surgeries. It is by linking these initiatives that we can consider further how to raise awareness about the needs and rights of cohabitants, instead of complex and expensive legislation. Further work is being carried out by the Department for Children, Schools and Families, which is now leading on work to improve services for separating parents. Last December a package of support for adults and children experiencing family breakdown, or at greatest risk of experiencing it, was announced. That included local pilots to test the provision of better co-ordinated local support for separating and separated parents. Separating parents have a number of practical and emotional issues to resolve following separation, which include child maintenance, child contact, benefits, tax credits, and legal, housing and work matters. For many, the emotional and practical issues are inextricably linked. Many families need either access to counselling and mediation services or practical and legal support, delivered in a way that really makes a difference. The noble Lord’s Bill deals with a number of important issues, and I hope that from what I have said your Lordships will accept that our priority is to help individuals who are in exactly the situation that has been described in this debate. From the provisions your Lordships will know that, in areas such as bereavement and registration of death, we accept that there is a case for some reform in the interests of fairness. Action is already proposed, for example, to amend the Fatal Accidents Act 1976 and the Coroners and Justice Bill, currently in the other place, which the Bill would duplicate. The principal element of the Bill is, in effect, provision for the equivalent of the division of property on divorce or dissolution of civil partnership to be available for former cohabitants, provided that they apply within two years of the end of their relationship. I hear what the noble Lord says: that structure could be changed, the timing could be looked at and the nature of the criterion could be looked at. We fear, however, that the proposals, including the opt-out, are complex. There are real issues about when legal advice was taken, as people could subsequently seek to suggest that, with the effluxion of time, the conditions had changed since the agreement was made, and so on. Those complexities are very real. The insurance has been referred to. It is already possible for people to assign insurance policies to named individuals. The Law Commission and the Scottish Law Commission issued a joint consultation paper on insurable rights in January 2008. The response was published in May 2008, and they will be publishing an impact statement with a final report and draft Bill on consumer insurance in the future. With regard to wills, noble Lords will know that provisions can be made where there is a will; where there is none, we already have provisions that apply if the couple is living together at the time of the death. Bereavement damages, as I have mentioned, can be provided for. On the registration of death, the Government have included provisions that would deal with that matter in the Coroners and Justice Bill, which received its Second Reading on 26 January this year. We now have a plethora of advice provision regarding this issue. The Government fund the Advicenow website with the Advice Services Alliance, and we have had over 1 million visits to that site. We work in partnership with Amazon and ASA. The media campaign LivingTogether is now in its fourth year. A study by Professor Anne Barlow has assessed that campaign, and she says that it is very positive. We also have the One Plus One website. We are looking at new ways in which we can raise awareness with activities in schools. There are also better links across government for providing advice, with the DWP supplying pension advice and the Land Registry advice when couples buy property. There is the potential for doing more, including a one-stop shop. I therefore understand entirely the thrust of, and purpose behind, the noble Lord’s Bill. I also understand the opposition to it of the noble Lord, Lord Henley. I understand, too, the plea made in support of it by the Liberal Democrat Benches. I assure the House that we will continue to look at this matter—the Government have not resiled from it—but we do not think that this Bill is necessarily the right vehicle to bring home the strong desire of the noble Lord, Lord Lester, to provide help in respect of the aberrant effects that sometimes befall those who have previously cohabited. However, I assure the noble Lord, Lord Lester, that I have raised with my colleagues in the Ministry of Justice his plea in this regard, and I am sure that they will stand ready to have further discussions with him.