My Lords, a few months ago the Prime Minister announced that all government policies would be subject to a new family test: what impact would they have on relationship formation and breakdown? It is against those standards that I seek to assess the Bill. My conclusion is that it would reduce willingness to commit long-term and would greatly increase the stress of couple breakdown, significantly to the detriment of children.
Few of us today would argue against affording respect to all family forms. But this Bill, albeit with the best of intentions, puts a widespread choice of lifestyle—cohabitation—into lockdown. If it were to be enacted, which I sincerely hope will not come about, the outcome would be that married couples, civil partners and same-sex couples would have the free choice of union, from which they may refrain or enter, but cohabiting couples, both future and past—for the Bill has some retrospective elements, which are particularly contentious—will find that they are snared unaware in a trap of laws from which there is no escape, save for the opting-out provisions of the Bill. Almost the entire panoply of marriage law is to be lowered on to them by the Bill once they have spent two years cohabiting—two years is the average length of a cohabitation—or if they are parents of a child. People often use the phrase “bedroom tax” but, if enacted, this Bill would be the real bedroom tax: share your bedroom and you will be taxed for ever more.
Since cohabitation is so common, we are told that it must give rise to marriage-like consequences for the protection of women, although quite what that “protection” amounts to is an issue for analysis. But if the Bill is enacted, cohabitation will become as expensive and legalistic as divorce, no more attractive than marriage but bound to deter even more men from the stability that their children so badly need. It is true that some other countries have enacted recognition of cohabitation in terms of marriage law. American states, however, are rowing back from legal regimes for cohabitants. But those other countries listed by the noble Lord, Lord Marks, have already reformed their law on financial provision at the end of marriage to be less generous, less discretionary and more likely to be based on a fixed half share of matrimonial property, and they recognise nuptial agreements. It makes more sense, if any, to apply the law to cohabiting couples when it is reformed and certain, if that is what is going to
happen, rather than when it remains as discretionary as ours. This Bill mimics existing matrimonial law in that it preserves too much judicial discretion with no rational principles except paternalism. That is why mediation may well not work. There will be a risk of blackmail behind the scenes because, without firm judicial principles for the assessment of property transfers, one of the couple will hassle the other for a settlement. Judges do not see this; they see only the cases that come to them, the tip of the iceberg.
Is this reform in the interests of children, children who we know, from studies of cohabitation, will do worse at school and only one-third of whom can expect to be living with both unmarried parents by the time they are 16? The damage to those children arises from their social situation, not the law. Cohabiting couples with children are more likely to break up than childless cohabitants or married couples, and they are less likely to conclude their cohabitation in marriage. Schedule 1 to the Children Act 1989 already provides for orders for the support of a parent, usually the mother, and the child, periodical payments, lump sums and the transfer of property. We also have the Child Maintenance Service, successor to the Child Support Agency. Getting child support from unmarried fathers has always been like getting blood from a stone, and nothing in this Bill will alter that sad fact.
The argument will be made that so-called wives who married in unrecognised Muslim ceremonies need financial support, but it is not a good thing to change our law in a significant way for everybody to accommodate Sharia law. It is not right for some couples to overlook or ignore our marriage law and then try to rely on it later when things go wrong, especially since I understand that there are provisions in Sharia law for alimony and something similar at the end of a union.
This Bill is a real vote loser. It is an attack on the liberty of two people who have refrained from marrying. Either they have good reasons not to—for example, preserving property from a previous relationship—or they are trying out the relationship before cementing it. It may well be that one of them would like to marry and the other holds back, but we do not have forced marriage in this country. We observe the human rights of privacy and respect for family life, which the provisions of this Bill ignore. Professor Cretney, a former law commissioner, has written that it is hard to understand why those cohabitants who express distaste for marriage and all its legal trappings should want the benefits of a comparable legal regime, with all the financial and emotional costs of litigation, and that it is possible that the scheme will become the instrument of exploitation and harassment. In fact, consultees to the Law Commission were finely divided on this.
Ordinary members of the public do not want this. Here are some quotes from the Guardian—please note, they are not from the Daily Mail:
“When is the state going to recognise that cohabiting couples are adults who choose to live their lives that way precisely because they don’t wish to busybodies—either religious or state-sponsored—poking into their personal affairs?”.
“In an increasingly difficult world why make the very ordinary occasional experience of people choosing to live together for a while, as a test marriage or whatever, fraught with paranoia?”.
“All it will do is ensure that virtually every ended relationship will end up in court, enriching family lawyers at the expense of the cohabitees themselves”.
I am sure there are plenty of openings for legal dispute in this Bill. What does it mean to live as a couple when there are so many lifestyles today? If it means a sexual relationship, the Bill should say so. Either way, a degree of inquisition is bound to follow. The Bill implies that a sexual relationship is the key to getting financial support. It is a pity that the sexless sisters who live together for decades are still not recognised as deserving of any tax breaks, an issue I have raised before.
The Bill sends a bad message to career women. Why should the mistress of a rich man get, for example, £5 million after a couple of years of childless cohabitation? Why should two students who shared a flat find themselves exposed to legal action? Why should a woman with a good career, who is deserted by the man she had hoped would marry her, face demands from him for her money? Cohabitants know that they are not married, and they have chosen to draw back from it. There is nothing to stop them marrying, as there was years ago when divorce was difficult. If they are dissatisfied with insecurity, why not pop down to the register office and marry to get rights? Couples may be trying out a relationship and we should not impose the penalties of a failed marriage on those who thought their experimentation would preserve them from precisely that fate.
What is it about cohabitation that must be recognised? Nothing has yet replaced the traditional symbols of legal commitment: the ring, the ceremony, the contract. Today there is a general practice of not committing—relationships, rules and futures are ambiguous. A University of Denver study demonstrated that men see the moment of marriage, not cohabitation, as the assumption of responsibility, whereas women see attachment and living together as more binding. Therefore, there is an inherent clash of perspectives. Less than 4% of cohabitations last 10 years or more, and the more frequent and longer the cohabitations, the more likely the subsequent divorce, which all adds up to a bad story for children.
The intestacy provisions in the Bill are not as detrimental to the family as were those in the earlier Bill on this in 2012, the Inheritance (Cohabitants) Bill. Nevertheless, I cannot see the point of fresh provisions when cohabitants already have the capacity to bring claims under the Inheritance (Provision for Family and Dependants) Act 1975, as relaxed by the Law Reform (Succession) Act 1995, to allow a cohabitant of two years’ status to claim. Such claims, pitting the surviving cohabitant against the blood family, can be bitter, expensive and protracted.
In sum, it is illiberal to impose on couples an intrusive contractual obligation, not freely entered into, and it will encourage inherently more unstable relationships. We should encourage contracts between those who share property. The opt-out provisions of the Bill would be a good model if they were opt-in in the alternative; in other words, this proposed law should apply only if the couple had read it and signed up to accepting it. Otherwise, we should retain a
corner of freedom where couples may escape family law, with all its difficulties, uncertainty and crippling expense and intrusion.
Cohabitation is not marriage, now or historically. The research by my former pupil, Professor Probert, has shown that there never was a period in the past when common law marriage was recognised. People need the freedom to try alternative forms of relationship, not to have one imposed on them. No more bedroom taxes.
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