Cohabitation Bill [HL]

I say what I do about this amendment with certain principles behind me which also apply to all the amendments in the name of myself and the noble Lord, Lord Henley. I have tabled this amendment and many others in order to reduce litigation. This is for the sake of our daughters, and sometimes our sons, and for the sake of our grandchildren and their stability. This is against the background of the bitterness always engendered in family proceedings between two people who once had a good relationship. It is against a background of an industry of mediators who may not have had as much success as was promised 10 years ago, and against a background highlighted again only today in newspapers that fathers simply will not pay for their children. We know about the organisations that fathers support and the inexplicable refusal of men to take care of the families that they have left behind and the inability of the state to get that money out of them. We have to be realistic. I speak to this amendment also against the background of the change, only this week, of family proceedings being heard in open court. The details that come up later on in the Bill, those in Clause 9—indeed, the whole situation—will be heard in open court. The judges may throw out the journalists, but every couple caught up in this situation will have to say to themselves that the details of their commitment, the details of their relationship or non-relationship, may be all over the press. They will have to recite all of that in front of a courtroom full of journalists. I also say this against the background of Article 8 of the European Convention on Human Rights, on the right to respect for private life, and the fact that we all have a human right to follow a path of relationships that suits us. This is sometimes outside the law. There is no disapproval of that. If we wish to stay outside the law and to have a private life, we have that human right. Professor Stephen Cretney, former Law Commissioner with responsibility for family law some years ago, brought his mind to bear on this situation, in particular the length of time as set out in this amendment. He said that his approach was strongly influenced by the belief that litigation in the context of intimate relationships is very frequently if not always destructive. Of course it is right to provide a remedy for injustice, but care must be taken that the cure is not provided at too great a cost. I do not believe that it is the function of the legal system to provide a remedy for every situation in which someone could plausibly argue that he or she has suffered loss. Certainly, the legal system should not provide an opportunity for what can easily become a form of harassment. That is the problem with both the amendments in this group. The question is not so much whether in the end a claim would succeed but whether it could plausibly be put forward, and the cost is financial and emotional. Surrounded as I am by noble and learned Lords, I still feel that I should point out that the cases that appear in court are only the tip of the iceberg. The power of the Bill, were it to be passed, would lie in the possibility of one of two people who had spent a short time together being able to say to the other, "Unless you pay me x, I am going to court". Those are the negotiations and the blackmail that the judges will not see, in the end. No doubt they will make sensible decisions in court, but they will not see what is going on beneath the surface and how this could be used as a weapon and a threat. It will emerge in discussion about later amendments that there is already an amplitude of law to meet the needs of a former cohabitant who falls on hard times. Schedule 1 to the Children Act exists and is underused. The only gap I have been able to find is the example of a polygamous wife who never really got married in this country and who has no children. It has been argued in this House that there is no help for such a woman. Only the other day, the noble Lord, Lord Bach, said in response to an Oral Question that this nation does not approve of polygamous marriages. I would find it hard to believe that the House would pass a Bill that would have the effect only of supporting this narrow range of women who may have believed themselves to be married but in fact were married polygamously and left destitute. It is right that the number of years goes up to five. In fact, had I thought about it longer, I might have said 10. Only 5 per cent of cohabitation lasts more than 10 years. Too often, to open the floodgates at two years, or even five, would have the bad effects that I have mentioned, quite apart from the ill effects of cohabitation law in general. There are two groups of cohabitants, research shows us. There are young couples, often just beginning their working lives and not committed. Over half the cohabitants in recent years until 2007 were under 35. They are capable of sorting out their own affairs, they are unsure about commitment and we should not penalise them for trying out a relationship. The other half are older and perhaps underprivileged. They will be hallmarked by children, early breakdown and lack of resources, and there is no point in passing a law to effect the transfer of resources where there are none and where people will end up living on social security. This is not the Law Commission Bill. I remind your Lordships that the Law Commission report did not, as in this clause, suggest automatic eligibility just because two people lived together; there needed to be evidence of qualifying contributions, and long cohabitation, however long, was insufficient. The Law Commission wanted a situation quite different from marriage. In fact, the problem with this clause is that if it is amended, the period will not even be five years because periods of separation will be allowed to count. If a couple live together for a year, separate for a year and come back together, that will still count. Indeed, in the Bill as it stands, almost any short period of cohabitation will be enough to send the deserted cohabitant to a lawyer or Citizens Advice to start a period of argument and hassle that can ill be afforded in this era of economic downturn. We must take account of how this will affect potential litigants as they separate. Many of the qualifications are impossible, such as the nature of commitment, but we will come on to that. This is an attempt to get some sort of cohabitation law on to the books in a way that will set back the cause of working women by many decades. A period of two years would have promoted a walkout at one year and 11 months. I fear that a period of five years will stimulate men into walking out after four years. If, heaven forfend, the next amendment were to be passed, it would mean a complete collapse in stability because a man might well know, given the publicity that would no doubt attend this, that any short period of living with a woman may well lead to a claim for money. What we all want is stability for our children and grandchildren. Giving these rights promotes instability, as much research shows. In other words, it will be detrimental to children. The median duration of cohabitations now is just under two years. Less than one-fifth survive five years. Many go on to get married. These figures were given by Ermisch and Francesconi in 2000 and in the Cabinet Office’s own paper by the Strategy Unit in December 2008 called, Families in Britain. The Office for National Statistics says that a first cohabitation lasts for 39 months. That is the mean length. In other words, anything less than five years would be wrong and too short in my opinion. In the end, it is not a good idea to encourage cohabitation, let alone when it is followed by break-up. A great deal has been written about high rates of abuse by men living with women who have children who are not his. The Law Commission said that it did not want to entertain trivial or farfetched claims. I fear very much that the amendments in the names of the noble Lord, Lord Lester, and the noble and learned Baroness, Lady Butler-Sloss, which cover anyone who had lived together for the shortest possible period, will certainly open the door to farfetched claims.