My Lords, I thank all noble Lords who have spoken in this interesting and serious debate, which, as the Minister said, has been conducted with great courtesy. However, I would like to respond to a number of points, particularly those made by the noble Baroness, Lady Deech, and the noble Lord, Lord Farmer, who opposed the Bill, and, to a lesser extent, to those made by the right reverend Prelate the Bishop of Sheffield, who, if I may gently chide him, recognised the injustices that were caused by the existing law on cohabitation but, frankly, opposed the measures in the Bill designed to right them.
My central position is that it is simply no answer to the injustice inherent in our arrangements at present—they were rightly described by the Minister as a patchwork, and I think he implied that they were unsatisfactory—to say that cohabiting couples could just get married. My noble friend Lord Wallace is indicating that I should speed up, so I will.
Along with almost all noble Lords who have spoken, I believe that we should support marriage. I have been a great supporter of marriage and have been married for many years, although not as long as some noble Lords who have spoken. I agree with and accept the point that this is a very public and important long-term commitment, and am in awe of all those who make it. However, we cannot deny the point that many couples simply choose not to get married, and their numbers are increasing. I say to the noble Lord, Lord Farmer, that we are not going to turn the clock back simply by refusing to help to relieve the injustice that cohabiting couples suffer—many of them unknowingly, as has been pointed out—under the present system. We are not going to persuade cohabiting couples to marry by denying relief on breakdown. While I fully support marriage, I start from the position that people should be free to make the choice to cohabit if they wish, and that if they make that choice they should at least be offered some protection by the law against unfairness.
The other point that I suggest was extremely well made by the noble and learned Baroness, Lady Butler-Sloss, was that it is not a case of couples choosing to marry; in many cases one partner, in love and wishing
to continue the relationship, wants to get married but the other is not willing to do so. I am very grateful for the distinguished support of the noble and learned Baroness, who has more experience in this field than probably anyone else around. The position of the noble Baroness, Lady Deech, would be to tell the partner who wished to marry that she or he must leave the relationship or accept the imbalance—or, as the noble Baroness, Lady Thornton, put it succinctly, accept that the other partner can simply say: “That’s tough”. I suggest that it is entirely wrong to perpetuate a system that has as its default position the notion that the unwilling partner may take advantage of the other and, while doing so, take advantage of any children that they have together.
The further point is that the Bill does not force anyone into the Bill’s scheme for redress on separation, nor does it require inheritance to pass to the surviving partner on death. The Bill provides for a default position that would apply where couples had chosen not to make alternative arrangements. That default position is nothing like the arrangements that follow from marriage. There is no continuing obligation of maintenance, as there is on divorce. There is no division of property, as there is on divorce; so the £5 million demand by the undeserving cohabitant mentioned by the noble Baroness, Lady Deech, is simply a figment of her imagination, or at least a forensic exaggeration. The opt-out provisions in the Bill are sensible. They give couples the power to take their future into their own hands, after consideration. No doubt most who opt out would do so with the additional help and certainty of a cohabitation agreement. The requirement for legal advice in connection with opt-outs is there as a safeguard. Yes, it would cost some money, but that is to be balanced against the protection, security and avoidance of future battles that such money would buy. The overwhelming points are that there are many cases where the present lack of protection gives rise to real injustice when a relationship ends with one party in a weakened position and the other having taken substantial benefits.
The noble and learned Baroness, Lady Butler-Sloss, mentioned the period of two years which I have chosen. The Law Commission suggested a period of between two and five years and suggested that if a longer period were chosen, couples would be able to get dispensation from the court so that the minimum duration requirement in an appropriate case would go down to the two-year position. I accept that that is a perfectly workable alternative. I chose two years because two years is the average length of a cohabitation that breaks down.
The unfairness is exaggerated, as has been pointed out, by the prevailing myth that cohabitants in a long relationship are protected, when that is simply not the case. The position is even worse where children are involved, and it gets worse every year. I am very grateful to my noble friend Lord Lester for pointing out what was said in Gow v Grant about Professor Elizabeth Cooke’s views on this point. Professor Cooke has been a leading proponent of family law reform within the Law Commission and her views are worthy of respect. However, children are the innocent victims of these breakdowns. The central question is therefore
where you draw the line between the need to protect and what the noble Baroness, Lady Deech, calls unwarranted interference by the state. This Bill draws the line by giving limited protection against injustice to long-term cohabitants and those with children as a default position while permitting parties of full capacity to opt out of the scheme if they wish.
As for provision on death, there is no need for anyone to die intestate. The remedy if couples do not want a surviving partner to inherit is to make a will. No one should forget the point, which has been made, that in the absence of provision, former cohabitants and their children tend to be forced to turn to the state for support on separation or bereavement. The noble Lord, Lord Farmer, pointed that out as a reason against supporting the Bill. I regard the opposite as the reality: the expense for the state is to be avoided. It is not only the expense for the state that is to be avoided by the provisions in the Bill, it is also the unwelcome dependence of abandoned parties on benefits, which has the effect of draining their confidence, draining hope and having a seriously damaging effect on their children. It is not compassionate to force people into state dependency and a complete lack of freedom in the name of a spurious freedom to cohabit without responsibility. This Bill places obligations on parties who part and have benefited from a relationship to offer some redress in respect of the benefit that they have gained.
I am very grateful for the support from the noble Baroness, Lady Thornton, on behalf of the opposition Benches. Unlike my noble friend Lord Lester, I do not see this so much as a party-political opportunity. I believe that there are many in the Conservative Party who support the provisions that I am proposing and that the Law Commission has proposed. Although the Minister was not enthusiastic about the Bill and thinks that a great deal of further work needs to be done, I did not sense an innate opposition to these proposals.
As it happens, I totally disagree that a great deal of further work needs to be done. I accept the position, although it was a cautious one, put by the noble and learned Baroness, Lady Scotland, when answering a Question on this matter in the previous Parliament: that the then Labour Government wished to wait until the experience in Scotland made the day a little clearer. The position now is that the Scottish legislation has worked and is working, and it has been applauded by the Supreme Court of the United Kingdom.
The Law Commission’s reports were thorough and well researched, and the position has not changed. The demand as well as the need for the Bill has increased, not reduced. I expect the Labour Party to support the Bill in accordance with what was said by the previous Government, and I am very grateful to the noble Baroness, Lady Thornton, for making that clear. I believe that, on consideration, if they form part of the next Government, Conservatives might also accept that position.
The Bill is about responsibility. It involves recognising that when people live together they take on a responsibility to consider each other, not to take advantage of each other, and at least to consider their positions in the
event that things go wrong by separation or death. The Bill enables the law to recognise that responsibility and give some meaning to it. However, it is also about compassion. The Law Commission has recognised that millions of couples are in cohabiting relationships and need protection under the law. It is about compassion for those who do not form cohabitation agreements or write a will. The Law Commission rejects the harsh view that if those people do not marry, they must take the consequences of staying outside marriage. The Bill recognises the realities of our society and tries to address them in a balanced and compassionate way. I ask the House to give the Bill a Second Reading.