(12 years ago)
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Lord Lester of Herne Hill
My Lords, in 2008 I introduced the Cohabitation Bill to give legal rights to financial provision for those in cohabiting relationships in the event of separation or death. It won wide support but was strongly opposed by the noble Baroness, Lady Deech, who, I am delighted to say, will take part in this debate. The Labour Government were sympathetic but awaited the outcome of the experience in Scotland, where the law is already in place. I am hopeful that my previous Bill, or a similar Bill, will be reintroduced in the near future.
Like many other countries, the Republic of Ireland gives legal protection to so-called common law marriages. It may surprise some that our law is well behind that of the Irish Republic. The Republic has a redress scheme for cohabiting couples under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which came into force on 1 January 2011. I hope that my noble friend Lord Marks of Henley-on-Thames will be able to introduce a Bill of his own to give effect to the Law Commission’s proposals on that wider issue of cohabitation rights. I can tell the House that this Bill has the support of the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Hamwee, neither of whom can be present today.
The present Bill is much more limited than the previous Bill but it is of real practical importance. It was drafted by the Law Commission for England and Wales—not by me—following its consultation on intestacy and family provision claims on death. For anyone who is interested, copies of the Law Commission’s rather long but important and well informed report can be obtained from the Printed Paper Office. The report sets out the Law Commission’s proposals to improve and clarify the law on intestacy and family provision. Those measures of law reform will particularly benefit women and children, and relieve the taxpayer of unnecessary burdens.
There is a special procedure for Law Commission Bills on non-controversial subjects, and the commission considers that most of its proposals can be dealt with in a non-contentious way. The Government have until the end of the year to respond to its report and I hope that they will be able to do so positively.
Meanwhile, the Law Commission considered—in paragraphs 1.100 to 1.105—that, because it is controversial to enhance the rights of cohabiting couples, it would be necessary to deal with that subject by means of a separate measure. It therefore drafted this Bill, which I have taken up in the hope that it will be given a Second Reading and, in due course, perhaps enacted together with a non-contentious Bill, as the two are part of each other.
When the Law Commission reviewed the law on intestacy more than 20 years ago, it rejected reform of the intestacy rules to take account of cohabitants. However, it recommended the inclusion of cohabitants as a separate category of applicant under the Inheritance (Provision for Family and Dependants) Act 1975. That recommendation was enacted in 1995 and took effect from 1 January 1996. Since then, a person living in the same household as the deceased, and as the husband or wife of the deceased for a continuous period of two years before the death, has been entitled to make a claim for family provision from the estate. That right has since been extended to same-sex couples—see paragraph 8.7 of the report.
Meanwhile, the prevalence of cohabitation has increased enormously. As the Law Commission noted in paragraph 8.21 of its report:
“Cohabitation is no longer an insignificant minority choice, nor a socially unacceptable lifestyle”.
In 2006, of those aged under 60 and unmarried, 24% of men and 25% of women were cohabiting in Britain. By 2010, around 7.5 million people were living in cohabiting families, representing more than 15% of all families. The Office for National Statistics indicates that the number of cohabiting couples in England and Wales will increase from 4.7 million in 2008 to 7.6 million in 2033. Cohabitation is widespread and will become more so.
The Law Commission’s research shows that cohabitants are among the people least likely to have a will and so most likely to die intestate. The National Consumer Council found that only 17% of cohabitants had made a will. The Law Commission’s research showed that court awards to cohabitants under the 1975 Act can result in the award of significant sums that make long-term provision for the applicant and recognise the lifestyle that the couple enjoyed. However, awards are limited to provision for the applicant’s maintenance, rather than being on the more generous basis used to make awards for spouses. Crucially, a cohabitant’s only route to a share of their deceased partner’s estate on intestacy is through litigation, or the threat of it, under the 1975 Act. The Law Commission comments that that can create significant hardship for cohabitants. That was shown by personal responses to its consultation.
The Law Commission’s research indicated that some cohabitants choose simply to move out of the family home rather than go through the costs and stress of litigation and that in other cases the cohabitant may not be aware of the right to claim at all under the 1975 Act. Where the cohabitant is caring for children from her or his relationship with the deceased, any claim will be against those children’s entitlement under the intestacy rules. Litigation is therefore likely to involve the added expense and emotional turmoil of having the children involved, and being separately represented, in proceedings essentially aimed at reorganising the estate to make the family finances workable.
The hardship of the current situation is caused mostly by ignorance of the law. Specifically, cohabitants believe themselves to be common-law spouses after a certain period of time, with all the rights of married or civil-partnered couples, and discover that this is not the case only when their partner dies. The report covers this in paragraphs 8.9, 8.17, 8.24 and 8.25.
The Law Commission’s report notes those who were opposed to change. It deals with all the consultation responses very fairly by explaining both sides. Among those in favour were professional groups such as Resolution, representing most family law solicitors, the Family Law Bar Association, the Law Society and the Office of the Official Solicitor. However, some professional groups oppose the change that would be accomplished by the Bill. Among them were judges of the Family Division and the Chancery Division of the High Court, and the City of Westminster Law Society. The Law Commission used the Nuffield survey on attitudes to will-making and succession for statistically significant evidence of public opinion.
The ability to inherit rests on commitment and financial interdependence. It is the financial interdependency that has practical implications for the cohabitant’s future after bereavement. Sharing a household and bringing up children increases interdependence, which only deepens over time. When that interdependency is terminated by death, hardship results. The report covers this in paragraph 8.18. The Law Commission found strong support for cohabitants to have an entitlement on intestacy, but it recognised that indicators of commitment were essential. The report covers this in paragraph 8.40.
Since I tabled the Bill, my office has received letters and e-mails of support from those whom the Bill is designed to help. These are people who, having cohabited for decades and shared their finances and the upbringing of their children, are passed over by the law in favour of other relations with whom the deceased had no or little contact prior to death. They face long, costly litigation, as well as the stress of uncertainty at a time when they are already suffering from grief.
The Law Commission recommended that certain “qualifying cohabitants” should be included in the list of those who benefit by default under the intestacy rules. The report covers this in paragraph 8.42. This is the change that the Bill accomplishes. The report explains its recommendation.
Clause 1 of the Bill amends the Administration of Estates Act 1925 to place a “qualifying cohabitant” in the same position as a spouse or civil partner. Clause 1(5) introduces the two conditions of being a “qualifying cohabitant”, only one of which needs to be met. This is similar to the Irish Act that I mentioned and also to the Scottish, Canadian, Australian and New Zealand legislation on similar themes. Clause 1(5) states:
“The first condition is that during the whole of the period of five years ending immediately before the intestate’s death the person was living as the intestate’s spouse or civil partner and in the same household as the intestate”.
The five-year period was arrived at because a shorter period would risk catching unawares some elderly cohabitants and overriding a positive decision to remain unmarried and so avoid incurring legal responsibilities. A longer period would exclude many of the people the Bill seeks to help. The report covers this in paragraph 8.85.
The second alternative condition is that the cohabitant lived as the intestate’s spouse or civil partner in the same household as the intestate for the whole of the period of two years ending immediately before the intestate’s death; and is the other parent of a child of the intestate who was born on or before the date of the intestate’s death; and at that date the child was living in the same household as that person and the intestate. In other words, two years with child, five years without.
The two-year period where the couple have children was arrived at in view of the existing legislation which takes two years as the threshold for making a claim against an intestate’s estate and because it demonstrates a relationship of some permanence. When combined with the fact of sharing children, indicating financial interdependence, seriousness and commitment, the two-year period is sufficient to justify entitlement but prevents the cohabitant from picking up an inappropriate entitlement where the presence of children is an unreliable indicator of commitment and interdependence. Those people who do not satisfy the two-year period but have children with the deceased will, under Clause 3, be able to apply for family provision under the 1975 Act. The report covers this in paragraphs 8.96 to 8.101.
Clause 2 extends to a qualifying cohabitant the current law that, under certain conditions, a surviving spouse or civil partner may use the value of any inheritance from the deceased’s estate and, if necessary, any additional funds to acquire the deceased’s interest in the family home in which the spouse or civil partner lives.
The Bill closes an important gap in the rights and needs of cohabitants and their children. Whereas spouses and civil partners whose partners die intestate are not placed in additional hardship because of the intestacy regime, cohabitants and their children are at risk. The Bill removes the necessity and expense of litigation to individuals and the taxpayer by facilitating inheritance in the event of the death of an intestate cohabitant. It remedies part of a greater injustice and will make some people’s lives a little easier following a bereavement.
I believe in marriage, which may seem old-fashioned, but the Bill does not undermine marriage. It respects the choices made by unmarried cohabiting couples, or the lack of choice through ignorance, and gives some protection to them and their children in the event of death. I hope it will lead to necessary law reform. I beg to move.
Baroness Kennedy of The Shaws
My Lords, I pay tribute to the noble Lord, Lord Lester, for introducing the Bill. This House often groans when lawyers seem to dominate debates and I often hear the proud declaration being made by non-lawyers when they stand to speak that they are untainted by law and that they come as sensible lay persons. However, I believe that occasionally a lawyer has something to contribute, and if there is one lawyer who should be marked out for his seminal role in legal reform from the 1960s to this day it is the noble Lord, Lord Lester. He has been at the heart of almost every great legal reform towards a fairer and more decent society, where discrimination is jettisoned and compassionate and just outcomes are sought. Women particularly have gained considerably from his efforts.
The Bill echoes many of the campaigns and arguments the noble Lord has made over time for legal reform. Indeed, he made a similar argument, which I supported, in 2004 when the law was reformed to create civil partnerships for gay couples. We argued then, as now, that there are miserable consequences for committed unmarried heterosexual couples when one of them dies. Losing the home they have shared and in which they have brought up their children is often a consequence of the death duties they are required to pay under our current intestacy and tax regimes.
I see the Bill as part of the slow progress towards equal justice. The resistance to change has always been about preserving marriage, based on the notion that cohabiting couples have a remedy—to get married. Indeed, I know couples who have lived together for many years and when they have turned 50, and suddenly felt the hints of mortality, they have rushed off to the registry office.
I want the House to understand the misconceptions that exist within our wider society. People think that living together as common-law man and wife, as they describe it, provides them with protections that in law do not exist. That is a common misperception and much of the research in this field shows that such views are widely held. The law has to reflect changing social reality, and many couples in the United Kingdom, as the noble Lord, Lord Lester, said, live together as a family unit and bring up their children like any other couple. The predicament they face on death, particularly early death, is unjust.
Yes, as the noble Lord, Lord Lester, described, they can make a case under the 1975 legislation and they can apply to the estate for maintenance, but I remind the House about the changes that have been made to legal aid and the kind of stress and emotional turmoil that is created for families if they have to take that route.
I say to opponents that Members of this House, for the most part, have enjoyed longevity—we are usually much older than the people who might make use of the Bill—and it may be that over our lifetimes we can see the purposes of marriage and the reasons for preserving it. A powerful argument is that a public statement of commitment is important. Whether it is in the eyes of God or only in the eyes of your community it provides an anchor in the challenging business of sustaining relationships. That is the argument to make for the importance of marriage, not the finding of mechanisms around the laws of intestacy, which work so powerfully against the interests of, particularly, women and children.
The loss to the Treasury, which may be in some people’s minds, is not as significant as the savings to the state in many other ways. Families who are left unable to continue living in the family home, for example, end up having to be provided for by the state because they are in extremis and unable to function in the way that they once did.
I hope the Government and the House will support the Bill. To argue that this is somehow an attack upon marriage is to misunderstand the purposes of this effort to change the law.
Baroness Deech
My Lords, I speak to express the strongest opposition to the passage of a Bill that, in a nutshell, will mean a further disinheritance of the children of the many marriages in this country that have ended in divorce, or who were born into unmarried and later broken relationships. It would also, if enacted, amount to an intrusion into private informal relationships—one might even say a denial of the human rights of privacy and respect for family life. There will be no avoiding the long reach of the law and lawyers, even for those who have chosen to live in a way that suits them but not the frameworks of the system. The Bill would transfer wealth from the children of the deceased to his or her cohabiting partner
In its report on intestacy in 2011, the Law Commission recognised the controversial nature of this proposal, which is why it separated it from the rest of its recommendations on intestacy in a separate Bill. It said that its proposal to change the law to give preference to cohabitants’ survivors recognised the vulnerability, intimacy and interdependence of the deceased’s relationships and the impact of bereavement on the partner. But what about the vulnerability and interdependence of the deceased’s surviving children, and the impact of bereavement on them? If enacted, the Bill would simply reverse the burden of challenge on intestacy away from the cohabitant—which is where it is now—on to the family. Cohabiting partners of the deceased already have a way to seek provision from the estate on intestacy, or from a will, under the Inheritance (Provision for Family and Dependants) Act 1975. The Act’s terms were relaxed in recent legislation. The Law Reform (Succession) Act 1995 enables a cohabitant of two years’ standing to make a claim without the need to prove dependency, which had been a former requirement. The judges who responded to the Law Commission consultation on intestacy in 2009 pointed out that in such circumstances the matter is better settled by judicial discretion, in rearranging the estate to accommodate the cohabitant if necessary, than by a fixed share which takes most of it away from the children.
Under the existing law, most such claims by cohabitants versus family settle before hearing. Now that there is an official family law arbitration service, claims need not cost as much as they do in court. It is notorious that intestacy claims can be so bitterly litigated that they eat up the disputed assets and the lawyers are the only beneficiaries. In Scots law, the Family Law (Scotland) Act 2006 does not take this Bill’s approach. The cohabitant’s claims against the deceased’s estate are a matter of discretion, with an upper limit of what a spouse would have received. In doing the calculations in Scotland, the court can take into account the pension of the deceased that may well have been paid to the cohabitant because the deceased hereto can nominate her. In this nation too, the pension can be nominated in favour of the cohabitant and the tenancy will probably automatically pass to her on death; so will the house, if in joint tenancy. The cohabitant might be married or living with someone else too, but that is no bar to a claim. We are not talking of utter deprivation.
To summarise the reasons for opposing this Bill—in addition to children’s rights and human rights arguments—the existing judicial family provision regime is the most appropriate way to decide these issues. It is quite possible that the deceased person did not want his cohabitant to inherit; there will be increased litigation by the blood family against a claimant cohabitant; and many people who know the law want their autonomy, as I will show shortly. Those who do not should be made aware of the situation. There is no more unpleasant and protracted litigation than that between a first wife and children on one side, and on the other the second partner of the deceased man. Although the case of Sherrington—which I know about because the deceased was a friend of mine—was about marriage not cohabitation, the deceased, Richard Sherrington, left everything to his second wife of a short marriage and nothing to his first wife and three adult children. The litigation went on for six years and cost nearly £1 million. It involved minute descriptions of the relationship with the second wife. This would happen in cases more often, and similarly unpleasantly, were this Bill to become law, when of necessity there would be disputes about the duration and nature of the cohabiting relationship.
The Bill is particularly insensitive at this time when there is much consideration of same-sex marriage. If these proposals were to go ahead, we would have a society containing separate regimes for heterosexual and, maybe in future, same-sex marriage, civil partnerships and cohabitation, and family members living together, all with different rights and duties. We need a complete, unified appraisal of all such relationships and no more piecemeal tinkering with legal rights deriving from different forms of sexual relationships that attract attention at any time. The Bill provides that if two people live together for five years, or two years with their child still with them, the surviving cohabitant should take the spousal share of the estate of the intestate cohabitant, provided he was not married to someone else or in a civil partnership. Under the current law that sum is £250,000, with the rest of the estate divided between the partner and the children. If there are no children, then the figure would be £450,000. Since the estates of most of those who do not make wills is smaller than this, in effect the cohabitant survivor would take everything. It is not clear from the Bill whether the exemption from inheritance tax that applies to the married would also apply here.
More than half the population do not have a will. Those who are in possession of significant sums are much more likely to make one than those who do not. So if passed this Bill would in general affect the less well-off. Of the married population, 45% make a will, but only 17% of cohabitants; presumably because they have no belief in any legal consequences of their living styles, whereas the married do. Moreover, cohabitants are more likely to be young, have fewer assets and be less settled. The median age for making a will is 69 for men, 73 for women. In response to the Law Commission’s consultation on cohabitants and intestacy, on which this Bill is based, 40 out of 79 respondents clearly opposed reform. That is hardly an overwhelming consensus in favour of reform. Those respondents who were in favour were in the main the organisations that have a professional interest in this topic, mostly lawyers: Resolution, the Chancery Bar Association, district judges, the Society of Trust and Estate Practitioners, the Law Society, the Family Law Bar Association, the Family Justice Council and the Official Solicitor. Those who were opposed to the proposals were the judges of the Family Division and the Chancery Division, and individuals. The Law Commission seemed to weight more heavily the responses that favoured regulation.
In another survey, by Williams, Potter and Douglas, it was discovered that younger respondents were less likely to favour cohabitants’ shares than the older. This may be because the young are more likely to cohabit—it peaks in the 20s—and are more aware of the transient, experimental nature of many such relationships. The Law Commission’s main reasoning was that people who live together are ignorant of what their rights might be. This is not an argument that prevails elsewhere in the law; nor does it appreciate quite how well informed the public are in their way, as I shall show. The Law Commission’s consultation paper on this topic did not pay sufficient attention to the crucial question of the deceased’s children by another woman, as distinct from whether he had no children or children by the cohabitant. The proposal that someone who has not committed himself or herself by marriage, or even by making a will, should leave all his or her property to the cohabitant, not his children, makes no sense.
The reported cases of cohabitants’ claims are about childless estates. At most, a life interest in a small share for the cohabitant is all that could be regarded as fair in the circumstances, so that if necessary the cohabitant avoids being in need but does not disinherit the children on her death. The National Centre for Social Research, whose 2010 survey was relied on by the Law Commission, put to people scenarios about intestacy to check their response. It posited a woman dying intestate, which is rather different from the situation most of us think about when we are concerned with this. Even so, less than half the surveyed people would give all of the estate, or priority, to the partner, even after a 25-year cohabitation. With a baby on the scene in the hypothetical short partnership, less than half would give all or priority to the partner, and the majority would give all or some to the baby. In a long childless union of, say, 10 years, only 53% of those surveyed preferred the partner over the deceased’s parents as beneficiaries. There was a strong feeling that the children should not be disinherited and that the partner should get something, but not the lion’s share. As I have said, a life interest in a maximum of 25% would be fair enough.
However, one should not just listen to the professional organisations, as the Law Commission did, without listening to ordinary members of the public who are not being fed possibly leading questions. Whenever I have lectured on this, I have received hundreds of letters opposing more law for cohabitants, but I will not personalise this. I shall quote from the many blogs that have appeared in the Guardian—not the Telegraph:
“I have no intention of allowing my daughter’s inheritance to be diluted by my new or former partner”.
“This is a ridiculous idea. One of the main points of marriage is to show commitment”.
“I knew I didn’t want to marry her, but we stayed and lived together for over a year, so sometimes you live together but aren’t sure”.
“If these proposals are accepted, then the state will effectively marry people whether they like it or not, after a certain number of years. I strongly object to this. The decision for a person to marry should be for them to make and them alone. If accepted, this proposal will effectively strip individuals of the right to live no-strings-attached”.
“I am not for it because some people who cohabit do not believe at all in marriage and all it entails. Cohabitation is a trial run. I am sick to the back teeth about these calls for cohabitee rights. Why should I be denied the right to live with a partner on my own terms because for some bizarre reason some people who wish to live as married do so without actually marrying or setting out their affairs to protect themselves? This proposal is illiberal, complicated and impractical ... it is important to have a clear distinction between marriage and cohabitation so that people know where they are”.
“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 busybodies—either religious or state sponsored—poking into their personal affairs”.
“The idea of being treated like a married person when I’m not is just ghastly”.
“This is a very regressive suggestion. It’s also classic nanny state. Want a share in your partner’s money, then ask for it (by marriage)”.
“I was really hoping that this stupid proposal for a new law would go away”.
“The blood sucking lawyers would love the opportunity to leech off a group of people who have either arranged things to suit themselves thus not needing the assistance of the legal profession or simply do not want the law butting into their lives … who in their right mind will live with anybody again unless very committed to the relationship … (they will usually get married anyway)”.
“Totally, totally illogical. It’s marriage by default, folks! Can’t you people see that?”
“People have a legal right to be single and that is that”.
“Extending quasi marital rights to those who have not chosen to enter into a legally binding agreement is not fair at all”.
I could go on because I have pages of these quotes, but to spare noble Lords, the final quote is:
“They move the goalposts so that despite not being married, you can still get your wallet nicked”.
So it is the principled issue of legal recognition of cohabitation that the public is looking at. I will not go into the details of how the definition of cohabitation is dealt with in this Bill, save to make the following general comments on the difficulty of recognising it. In the absence of any legal ceremony or document, how are all those who get involved in probate and death, the family and the officials, to know that there was a cohabitation? Even being together for five years does not necessarily signal permanent commitment of the sort that would attract the legal effect of extending beyond the grave for all time to come at the expense of the family. The fact of sharing a household for two years with a child does not obviously mean that the survivor should get the first £250,000. Who is to know whether the relationship was a sexual one, for even marriages are not always sexually defined? If one person shares a home with another who dies, what is to stop the first falsely claiming that their relationship was intimate?
One has to question, as I have done before, why property transfer applies only to couples in what was presumably a sexual relationship that has ended, and not sisters. Once marriage is abandoned as the clear blue line for legal responsibilities, then logically all relationships—sibling, incestuous, polygamous or whatever—should be treated equally. It is hard to see why it is the sexual element that elevates certain relationships for financial reward, even though they are no more or less co-dependent than others. The result, if this Bill is passed, might be forensic investigation to see whether the relationship that is alleged did actually exist, and more pressure on resources at the time of death, adding to the administrative difficulties that exist at that time anyway; and maybe it would give rise to a new breed of serial cohabitants who stay for one year and 51 weeks if there is a child or four years and 51 weeks if not.
At the time of death, it has been predicted by probate genealogists in relation to this Bill’s effects that much time would have to be expended on searching electoral rolls, tenancy agreements, utility bills and interviewing family members to establish the situation if there might be a cohabitant survivor. It will be hard to know if the person who steps forward to obtain the grant of representation is really the cohabitant, for it would be their task to obtain the grant, not the family members or children. There could be delays of years in settling some estates while this goes on and pressure to settle even where there is no real claim.
Lord Lester of Herne Hill
I am grateful to the noble Baroness. Has she looked at jurisdictions in other countries where there is similar legislation that works perfectly well?
Baroness Deech
My Lords, family law in this country does not always follow other countries; sometimes we learn from them. Indeed, sometimes I wish we had followed Scotland when it comes to dividing up proceeds on divorce, but that is another issue.
What about the unregistered Muslim marriage with several surviving legally unmarried “wives”—are they to share?
We come down to the most fundamental issues in death and life—human rights and care for one’s children. We have heard the views of some members of the public. There is a human right to live privately that risks being breached here. Some older divorced and widowed people want companionship, rather than to live on their own, but do not marry again precisely in order to preserve their estate for the children of an earlier marriage. Private adult choices should be respected. There should be no imposition of legal regulation on those who actively choose not to marry and who refrain from making a will, maybe in the belief that their existing family would thereby be protected. If there is hardship for a surviving cohabitant, we have judicial discretion under existing law to remedy it without this shift away from the family that the Bill would bring about. Many say that marriage is just a piece of paper, a lifestyle no superior to cohabitation, and that cohabitants are as committed as any others. So why do those same people want to attach heavy legal significance to cohabitation, mimicking marriage?
I have great sympathy for the younger generation today, who face tuition fees and mortgage burdens vastly heavier than was the case for my age group. If any generation needs care on the death of a father or grandfather it is the young, not the peer group. To deprive them of their inheritance could make all the difference to accessing higher education or buying a house. The cohabitant who might be entitled to the estate under this Bill could well be married to someone else at the time of the deceased’s death, or enter a future marriage or relationship carrying with her the inheritance, gone forever from the deceased’s blood family, to her new family. I see no reason to downgrade the family members in favour of a partner when the deceased did not actively choose to do so. It is not fair to remove maintenance from the children when we have a high divorce rate and widespread failure by men to support their children in their lifetimes. The children who stand to be disinherited by the provisions of this Bill may be the same ones whose support was neglected by their father during his lifetime. The children will have to incur the expense of challenging the intestacy provision rather than the partner: that is the real import of this Bill.
In their responses to the Law Commission, judges said that the child should take priority. Children have no choice in the matter, but the cohabitant survivor may move on to another life and other methods of support. I urge the House to express its principled arguments against this Bill.
The Lord Bishop of Manchester
My Lords, the Bill introduced by the noble Lord, Lord Lester of Herne Hill, provides a valuable opportunity to consider issues that are of considerable and increasing importance for a large number of people in our society. Reference has already been made to the Law Commission’s 2007 report in which proposals were made for addressing the financial hardship suffered by cohabitants or their children on the termination of their relationship by separation or death. That report followed an extensive consultation exercise by the Law Commission in which the Church of England was pleased to participate.
Our starting point was, and is, that marriage is central to the stability and health of human society, in particular, the faithful, committed, loving, permanent and legally sanctioned relationship between a man and a woman which marriage affords and which continues to provide the best context for the raising of children. For that reason, it warrants a special position within the social and legislative framework of our society. Since marriage contributes to the common good, there is a very strong case for pursuing public policies that promote and encourage it. The other side of that coin is that there is an equally strong case against legislating in a way that makes marriage simply one of a number of choices on a consumerist model.
Nevertheless, as the General Synod affirmed in 2004, the Church of England recognises that there are some issues of hardship and vulnerability for people whose relationships are not based on marriage and that they need to be addressed by the creation of new legal rights. The question for the church is how Parliament, working for the common good, can make proper provision for those who face such hardship and vulnerability while recognising the overarching gift and blessing that marriage provides not only for a couple themselves but also for the wider community.
Adequate steps should be taken to prevent manifest injustice for those who do not bring themselves within the legally recognised institution of marriage or indeed civil partnership. While there are some couples who make an informed decision not to do so, injustice can arise where there is inequality in the respective financial positions of cohabiting parties—I speak here from close family experience. The less financially secure partner might well wish to formalise the relationship, but the other partner may seek to avoid the responsibility that goes with that and decline to do so. The partner in the weaker financial position is then vulnerable as a result and may face hardship if the couple separate or if the other partner dies without having made proper financial provision for the survivor. This sort of hardship can be particularly acute in cases where the couple have a child or children which one of them is then left to look after.
On the face it, therefore, the guiding principle behind the Bill—to alleviate hardship and injustice, especially where one partner dies without making adequate financial provision for the survivor—ought to be welcomed. I do, though, have some concerns about whether the measures set out within this Bill provide the best or the right way to go about addressing what clearly is a real problem.
First, the Bill limits itself to matters of inheritance. That is, of course, an important aspect of the wider set of issues concerned with financial provision for cohabitants, but is it a good idea to address this particular aspect in isolation? If we do, will we not end up with a piecemeal approach to the wider problem? For, at some point, we will need to address the equally important question of what provision should be made for cohabitating couples who separate. The issues of hardship can be equally acute in those circumstances, as I know. Would it not be better for the Government to bring forward proposals that addressed the wider issue, so that a consistent and principled approach could be decided on and applied across the various aspects of financial provision for cohabitants?
Secondly, and perhaps more significantly, the Bill would put a “qualifying cohabitant” in precisely the same position as a surviving spouse or civil partner for the purposes of the legislation that deals with inheritance and intestacy. It would also put a qualifying cohabitant in the position of a spouse or civil partner in cases where the deceased partner had made a will but where it was argued that the provision made in the will did not amount to reasonable financial provision. In conceptual terms, that is of course very neat: it simply assimilates the surviving cohabitant to the position of a surviving spouse or civil partner.
But is that necessarily the right principle? Taking marriage vows or registering a civil partnership is a particular step that a couple choose to make. They make it in the knowledge that it has consequences in terms both of the personal relationship between the partners and of their legal rights and responsibilities towards each other. Cohabitants have clearly not taken that step. It is therefore far from clear that they should be treated for the purposes of the law of inheritance as if they had. The partners would in effect acquire a de facto legal status simply on the basis of things that they had done—living together, becoming parents—but without having made any particular formal commitment to one another and without voluntarily taking a particular status upon themselves. That seems to be a questionable approach for the law to take to people’s relationships.
Some would doubtless argue that, instead of going down this route, government attention and resource might be better focused on ensuring that those in cohabiting relationships more fully understand their legal rights and entitlements and that they be encouraged to take responsibility for making proper legal provision for the other if their relationship status did not automatically confer it.
An alternative approach that the church advocated in its response to the Law Commission consultation is one that I believe still merits serious consideration. The focus would not be on imposing a legal status on couples who had not chosen to enter into marriage or civil partnership; rather it would be based on alleviating hardship in particular cases. It is not obvious that the fact of cohabitation for a minimum period, the length of which would necessarily be arbitrary, should of itself give rise to legal rights. The alternative approach would be legislating to enable financial provision to be ordered where it could be shown that a cohabitant would otherwise suffer manifest injustice as a result of the relationship coming to an end. Financial provision, therefore, would not be automatic; it would be directed to the alleviation of particular instances of injustice, which could include making provision for children of the relationship. That broad, principled approach could be applied equally to the situation where a relationship between cohabitants had ended by separation or indeed by death.
Although I do not think that the Bill here gets things quite right, I am very grateful to the noble Lord, Lord Lester, for introducing it and thereby enabling this debate. This is a subject that we need to address, not least to protect the vulnerable and to prevent injustice, while also affirming, as the noble Lord has done, the huge importance of marriage. We on these Benches would welcome a more comprehensive set of proposals from the Government than I am afraid this Bill, at this moment, appears to offer.
Baroness O'Cathain
My Lords, I oppose the Bill because I believe in the importance of marriage. Before continuing, I have to say that we have had very thoughtful contributions from all speakers. Most have been clear, but there have been some legal situations that I, as a non-legal person, cannot really put my head round. I will, however, make some conclusions at the end of my speech. My first concern is that the Bill would undermine the special place of marriage in our society. Marriage is already under sustained attack from our Government, as shown by the plans for the redefinition of marriage currently being pushed forward. It would be further devalued by the Bill.
In his proposals, my noble friend Lord Lester effectively equates marriage and cohabitation in law. Marriage and cohabitation are not, and should not be, regarded as equivalent. Marriage is defined by law as a life-long, exclusive commitment; a commitment publicly made by both husband and wife from the outset. In stark contrast, cohabitation is not a commitment. It is a transient relationship whose defining characteristic is that the man and woman have chosen not to marry, or to have a life-long commitment.
Studies have consistently shown that there are substantial differences in the stability of the relationship and the impact on children between married couples and those who cohabit. The 2000 British Household Panel survey involving 10,000 adults concluded that,
“cohabiting unions last only a short time before being converted into marriage or dissolving: their median length is about two years”.
These findings were later endorsed by the Scottish Government in Family Matters: Improving Family Law in Scotland in 2004. According to the Centre for Social Justice, fewer than 10% of married couples split up by the time of their child’s fifth birthday, compared to 33% for cohabiting couples. The centre also pointed out that 97% of couples who stay together until their children reach adulthood are married.
By equating the rights of married couples and those who cohabit, we are effectively saying that they are equal. I cannot understand why, in the name of equality, we constantly seek to iron out fundamental distinctions between relationships. Marriage is not a private arrangement between a man and woman: it brings together not just two people, but two families. In bringing together families, marriages build the communities on which everyday life is based. Married families form the bedrock of local communities and assist in tackling social problems such as loneliness and isolation which are so widespread. The right reverend Prelate the Bishop of Manchester referred to many more positive values brought to society by marriage.
We should therefore promote and protect marriage. The Bill typifies a narrow, blinkered approach which, while purporting to help individuals, actually serves to harm everyone by undermining the cornerstone of society. To give cohabitants the same legal protection as that which married couples receive at the death of one spouse fosters the impression that it does not matter whether you marry or cohabit. In giving cohabiting partners and married couples the same legal safeguards, public perception of marriage will be further weakened. In effect, it would send the message that commitment is of no consequence. Is that what we really want to do?
My second concern is that the Bill appears to be unnecessary. Cohabiting couples anxious about what should happen when one of them dies have two perfectly viable options open to them: they can get married, thereby receiving the benefits and protections currently provided, or they can plan carefully by making wills to ensure that provision is made for their cohabiting partner upon death. Here, we really ought to do something to ensure that every adult makes a will. So many people die intestate. That is great for lawyers but not for family members, such as children, husbands and cohabiting parties. I know of many supposedly intelligent people who will not even bother making a will. They say, “I am only 50; I am going to last to the age of 86”, or whatever. It is ridiculous. Why do we not make a bigger point of that?
In listening to the debate, one clear issue has come to the fore—namely, ignorance, as my noble friend Lord Lester called it, that there is no such thing as automatic provision on death to the surviving cohabitant. In other words, there is no such thing in legal rights as a common-law wife or husband. It was only relatively recently, within the last 10 years or so, that I realised that there were no legal rights there. There is a widespread perception that there is such a thing as a common-law wife or husband. That there is not should be stated time and again until there is universal knowledge of the situation—although the noble Baroness, Lady Deech, thinks that the belief is pretty universal. She shocked us with those quotes. I wholly support the comments of the right reverend Prelate the Bishop of Manchester on the issue.
As an aside—the noble Baroness, Lady Deech, referred to it but my noble friend Lord Lester’s Bill does not make this point—married couples have the benefit of inheritance tax relief whereas cohabiting couples do not. Currently, the taxation system recognises those who have made a commitment. Are we to downgrade commitment? The inheritance rights afforded to married couples are available to cohabiting couples—they have just rejected them by not getting married. There is clear evidence, as noted by the noble Baroness, Lady Deech, that many cohabiting couples do not want these rights. They have chosen not to marry because they do not want the legal ties involved. The Bill may be presented as not much more than a tidying-up exercise. It is a lot more than that and should be opposed in principle.
Lord Grantchester
My Lords, I am aware that I have no experience and little knowledge on this subject so it is with trepidation that I make my few remarks. I approach the Bill in general agreement with the sentiments behind it. After all, it seems very benign. It is always important to recognise the current reality of more and more people’s lives. As I have been asked to act as a trustee for friends’ and relations’ trust settlements, I thought I should look at the Bill to see whether it had relevance to that. It was then that I began to have reservations. I am concerned that I have not seen any thought given to how it may affect the wills and settlements of others. My anxiety stems from the definition of “cohabitant”. In the Bill, it seems to ape marriage and civil partnership, applying to those in a relationship without a marriage or partner certificate.
The primary reason behind the Bill seems to be to save the surviving cohabitant the trouble of making a claim when, after all, the cohabitant did not want to go to the trouble of formalising their relationship. I make this rather provocative remark as I understand that more and more awards are being made against claims coming forward under the 1975 Act. Why not consider other cohabitants who would also be valid, such as friends sharing a property together who could equally claim to be disadvantaged on the death of one of them intestate? The surviving cohabitant may end up losing his or her home.
I have learnt that stringency has been further relaxed in that there is no longer recognition of dependency. However, there is no recognition either that this new provision in giving advantage to one must necessarily disadvantage another. Are these the only considerations? Could the Bill actually do harm? I thought I had better look at the Law Commission report, Intestacy and Family Provision Claims on Death. It was then that I understood why the definition of cohabitant has been so drawn up. It appears that the Law Commission has drawn it up so that cohabitants will be able, at some time in the future, to make claims in any relationship breakdown.
The Bill’s definition makes way for that extension; it is consistent with that objective and would serve as a first step on the path. Paragraph 8.78 on page 167 states,
“we had in mind the Cohabitation Report, in which we recommended that cohabitants who have children together should have an entitlement to financial remedies on separation, and that there be a minimum duration requirement of between two and five years for eligibility for those who do not have children”.
That is very contentious. The report mentions the increase in cohabiting over the past 10 to 20 years. However, trust provisions have a long lifespan and may well have been drawn up with a different outlook than pervades today. I am sure that the noble Lord, Lord Lester, will know far better than me the difficulties, hurdles and complexities in making amendments to settlements which have been silent on cohabitation. What advice would he give a settler who did not intend the desire to help descendants to result in provision being dissipated among cohabitants?
Has the Law Commission undertaken research into cohabitants, in the number and circumstance a person today may have? Your Lordships will recognise that it is barely a year since prenuptial agreements have been recognised in court, which was not a unanimous decision. Presumably, we should also be anxious that people have pre-cohabitation agreements. The objection may be raised that that is irrelevant to the Bill; I contend that that is naive. In reading the Law Commission’s report, I was also struck by the consultation undertaken on the issue. Paragraph 8.36, on page 160, states:
“There is no overwhelming consensus in favour of reform”.
I am concerned that the Bill is premature and needs to be examined for all its implications before proceeding.
Lord Browne of Belmont
My Lords, while I recognise that the Bill is motivated by the best of intentions to ensure that injustices do not occur with respect to cohabitation and intestacy, I believe that its net contribution would be negative. There has been far too much legislation in recent years, and the Bill will add to the complexity of family law without increasing its fairness.
The underlying premise of the noble Lord’s Bill seems to be that because the automatically available protections for the surviving partner, with respect to the estate of the deceased partner, are so limited, the law surrounding cohabitation should be changed. That ignores two facts. First, if a couple want to access protections, they have the option of marriage. Secondly, if they do not wish to marry but to avail themselves of protections, they can. The primary available remedy to them is found in the writing of a will, providing for what will happen on death and avoiding either intestacy or diminishing disputed claims by family relatives against the surviving cohabitant. Other available remedies include letters of wishes, nominations and assignments of pension and life policies, a simple deed of trust, a cohabitation contract and powers of attorney.
I am aware that some may respond, “Yes, that is true but we still need to change the law because so many couples do not avail themselves of these protections”. I struggle with that argument, which seems to me profoundly illiberal. Changing the law so that cohabitees who have been together for more than two years and have children, and cohabitees who have been together for more than five years and do not have children, become effectively, in some real sense, married seems profoundly anti-choice. It offends the choice of those who wish to cohabit but not marry and have not chosen to avail themselves of any of the additional protective mechanisms that are available to them in law. It also offends the choice of those who are prepared to make the very significant—but very worth while, I might add—sacrifice that marriage involves. When a couple marry, they make a public “Till death us do part” commitment that is recognised in law and so it consequently seems logical that the level of protection surrounding their relationship should be more robust than that for those who have not made that commitment.
The truth is that we live in a culture that is increasingly nervous about commitment. If people can get automatic protections without anything remotely resembling the level of the marriage commitment, the rationale for marriage is eroded to some not insignificant degree. The truth is that society badly needs conscious, explicit and deliberate public commitment. We should be encouraging commitment, not creating a new legal framework that makes it less necessary. That is why the Prime Minister is exactly right to seek to encourage commitment by promoting the policy of recognising marriage in the tax system.
That point is very relevant to today’s debate. As the Secretary of State for Work and Pensions pointed out in February 2011, it is particularly striking that, despite the current fear of commitment, 90% of young people still aspire to marry. Why then do they not? It seems very likely that it is partly because the operational public policy context is such that it makes marriage too difficult.
The truth is that for the year 2010, the tax burden in the UK on a one-earner married couple with two children on average wage was a staggering 52% greater than the OECD average. Of particular interest to me is the fact that the tax burden on such a family as a proportion of that placed on a single person on the same wage was 74.5%, while the OECD average was just 51.4%. That differential highlights the extraordinary fiscal individualism of our tax and benefit arrangements compared with other developed countries—the vast majority of which recognise marriage in the tax system—which makes commitment so much harder here than elsewhere.
Those findings are hugely important, because the social science evidence is so clear that marriage is beneficial for society, helping both adult and child well-being. In particular, marriage is a far more stable environment than cohabitation. That is crucial for children, whose development is much stronger, on average, in a stable two-parent rather than a one-parent family. Moreover, as the Minister, the noble Lord, Lord Hill, pointed out in your Lordships’ House on 10 February 2011 at col. 389, this benefit is not actually a function of standard of living. The poorest 20% of married couples are more stable than all but the richest 20% of cohabiting couples.
Mindful of those considerations, it seems to me that rather than striving to make the option of cohabitating, commitment-light relationship easier, we should prioritise making the expression of the public, lifelong, “Till death us do part” commitment that is marriage no more difficult in the UK than in comparable developed countries.
Finally, although current law is in some cases unsatisfactory, rather than introduce a dramatic change in the law, especially equivalence to marriage, it would be better to acquaint and educate cohabitants with their lack of legal protection and make them aware of the existing remedies available.
Lord Harries of Pentregarth
My Lords, for a variety of reasons, spiritual human and societal, I, too, am a strong supporter of the institution of marriage, but I recognise that there are other kinds of relationship which give rise to responsibilities and rights for which it may be appropriate that legal provision be made. One of them is the situation which the Bill is intended to address.
Unlike some of your Lordships, I do not believe that making appropriate legal arrangements to safeguard the position of a surviving cohabitee and, where present, any children, in any way undermines or weakens the institution of marriage. Marriage is too robust for that, and I am sceptical of the idea that making the actual provision for a surviving cohabitee lessens the incentive for people to get married in the first place. I do not believe that people get married for financial motives. I have no difficulty in imagining and understanding the situation of someone dying intestate. Let us say that the couple are in their 30s, they have lived together for two years and have just had a child. The idea of making a will was the last thing on their minds. Then the main earner gets killed in a car accident. In such a situation, it is entirely reasonable that the law should make it as straightforward as possible for the surviving cohabitee to claim what money is available for the support of themselves and the child.
The Centre for Social Justice has produced a very useful briefing paper, raising a number of doubts about this Bill. It seems to raise two questions in particular that are very important for us to address. The first concerns the position of any other children who the deceased might have. Do not they have first call on any available money? This has of course been raised very powerfully by the noble Baroness, Lady Deech. However, as that paper sums it up succinctly:
“Children from the intestate’s previous relationships would be in a particularly vulnerable position, since the surviving cohabitant would have no obligation towards them. Such children would be able to bring a claim against the surviving cohabitant under the 1975 Act to claim an interest in their deceased parent’s estate, but this would simply reverse the current situation where a cohabitant has to claim against the children. The bitterness and difficulty of litigation is likely to be unchanged”.
I entirely agree that children from any previous relationships have a claim but the question is whose is prior: those children’s or that of the surviving cohabitee and any children of that relationship?
It is reasonable to assume that the relationship the person was in at the time of death is the one to which the deceased would have given priority. After all, at the time of death that is where they were physically committed. We cannot speculate on what was going on in their mind but we know for a fact that they were living together, had done for some time and may have had a child together. I agree that under this Bill there will continue to be the possibility of legal dispute if there are any other children who claim under the 1975 Act. However, it seems that either way, whether we go with this Bill or some alternative that gives a prior assumption to a claim of the children of previous relationships, there is always the likelihood or the real possibility of litigation. It seems there is no escaping that. The question is where the first claim on the estate should lie. I suggest that it should lie, as this Bill assumes, with the surviving cohabitee and any children of that relationship.
The noble Baroness, Lady Deech, raised the particular question of the children from a previous relationship who might, for instance, be expecting some help for their university education—an understandable situation. However, let us suppose that the first marriage had ended in divorce after 20 years and that the children are now perhaps 17 or 18 and waiting to go to university. In that situation, it seems highly likely that the couple will already have made a will. If the new relationship had lasted for five years, again, there would have been plenty of time during that period for the previous wife and husband and their children to have negotiated the financial aspects of the will. While that is a very real issue to consider, it is perhaps not as pressing as the situation that I mentioned before.
The second point that I wish to address from the briefing paper concerns the situation of the deceased cohabitee still being married or in a civil partnership with someone else; at least, they were before they died. In such a situation the Bill makes it clear that the surviving partner would not be the immediate beneficiary, and it is right that they should not be. If a marriage or civil partnership still legally exists—however broken in reality—that is where the priority for the estate rightly lies. The briefing paper comments:
“If the aim is to protect those who were living with the intestate and dependent upon him or her, then there seems no reason to exclude cases where the intestate was married or in a civil partnership”.
However, as I have suggested, those cases should be excluded. It is therefore true that the Bill will not give total protection to the surviving cohabitee but the point is whether it will give as much protection as possible, given all other legal considerations. Other legal obligations quite rightly have to be taken into account: in this case, the existence of a previous marriage or civil partnership. The issue is not whether it gives protection in all possible circumstances but whether it gives the maximum possible, taking other legal obligations into account.
The right reverend Prelate raised doubts about giving some kind of legal status to cohabitation and prefers an alternate system where an order might be made if the person is in need. However, it seems that the advantage of this Bill is that if a person dies suddenly, at least there will not be a protracted period before such an order is made. They will have some sense of financial security almost at the moment that they learn of the death and what the legal situation is.
I am happy to support this Bill, which may not affect vast numbers of people but will enable some to be more financially secure than they are at the moment. I think of the person who suddenly loses the person they have been making their life with, while expecting that life to go on, and it therefore never crossing the mind of either of them that they ought to make a will. They may have been imprudent but that is not the point; the law can make provision for them and I believe that it should.
Baroness O'Loan
My Lords, the issue of what happens to cohabitants of long standing who are left behind when their partner dies is one which has caused problems for thousands of people over the years. The Law Commission undoubtedly recognised that in its 2011 report. The noble Lord, Lord Lester, does a public service in introducing this Bill, which is carefully worded by the Law Commission to provide limited protection for surviving cohabitants and their children and recognises the rights of surviving spouses and civil partners and any children. I am pleased to support the principles articulated in this Bill. This is not a new matter and there has been speculation in the public domain for many years about whether any Government would ever have the courage to tackle this issue. The Bill is concise and carefully drafted so as to give effect only to the recommendations made by the commission.
There can be little doubt that there are now many people for whom cohabitation is the preferred choice of living arrangements. The 2011 Office for National Statistics report states that the number of cohabiting couples rose by 34%, some 292,000, and that the number of partners in marriage or civil partnership with dependent children fell by 319,000. The evidence shows that, for many people, living together is not just a temporary trial-run situation but rather that there are people for whom this is a life choice. Some 2.9 million couples have made this decision, according to figures released in 2012. In 2011, 38 per cent of cohabiting couples were parents—the same percentage as married couples with children—and 31 per cent of live births in 2010 were to women cohabiting with but not married to their partner, up from 25 per cent since 2001. The choices made by such people have consequences, which may be way outside their comprehension or expectation and which will affect not only those in the cohabiting relationship but the children of such relationships. Our social structures are clearly changing.
We also have some 7.6 million marriages or civil partnerships without children. Not all marital relationships have children and not all cohabitees have previously been married. Intestacy could simply result in an estate reverting to the state because there is no surviving spouse or children or others entitled to inherit under intestacy. It is a wider issue than the children of an existing marriage. We talk loosely of common law marriage and, as noble Lords have said, there are assumptions that rights exist in this context. Yet for intestacy purposes there is no such category as common law marriage. If one partner in a cohabiting relationship dies intestate, his estate will be dealt with in accordance with the law, and the law makes no current provision for cohabiting partners or the children of such relationships. They have no inheritance rights and probably will not know that they have the right to make an application to the court under the Inheritance (Provision for Family and Dependants) Act 1975 for an order varying the distribution under the intestacy rules or indeed, if there is a will, under that will. As has been said, they may well be reluctant to pursue such an application, given the inevitable public disclosure of their situation, the costs, the familial and other unpleasantness that may ensue and the uncertainties of any such action.
All those difficulties will be compounded by recent changes to legal aid. Those who have married will no longer have legal aid support when the marriage that was for life proves not to have been so and to have broken down. As a consequence, there are many situations that will leave more people in the situation where they cannot effectively leave their marriage, and they will be left with no option other than cohabitation. What will happen at present in most cases where there is intestacy is that those people will have to leave the house that has been their common home, often for decades. They will be left without any inheritance where the deceased has not made a will to indicate how he or she intends to dispose of his or her assets. That will almost inevitably lead to significant hardship. The reality is that the majority of people in this country do not leave more than £250,000 when they die, and that significant hardship may well not have been what the deceased would have wished to see.
The Bill introduced by the noble Lord, Lord Lester, proposes not that all cohabitants should have a right to inherit but rather that only qualifying cohabitants should be so entitled. The definition of “qualifying partners” is tightly drawn to include those who have lived together for a period of five years or a couple who have lived together for two years and have a child or children born on or before the date of death of the deceased partner who was living with the deceased at the time of death, so there are many conditions that must be satisfied.
The periods involved are relatively short, given that the effect of the Bill may be to deprive those who under the current law would be entitled to inherit any estate. It is important to recognise that effect. There will be cases, however, where those who are entitled under current law to inherit have no knowledge of the existence of the cohabiting spouse and the children who would now become entitled to inherit. That is a profoundly difficult situation. However, this is about securing a balance in competing rights in order to bring greater equity to the situation.
I accept all the evidence that shows that marriages last longer than cohabiting relationships, but there are cases where, for a variety of reasons, people who have previously been married are unable to secure a divorce for very long periods and, as a consequence, may be forced into cohabitation. People are making choices that leave them vulnerable and, very often, significantly disadvantaged. On death, it may emerge that a couple whom everyone thought were married had in fact been cohabiting for decades. The surviving cohabitee will face a change in their life situation that will go far beyond the loss of their partner.
The Bill simply seeks to treat cohabiting partners in the same way as those who are married or in civil partnerships for the purposes of intestacy, provided that they satisfy the conditions, and to extend the range of individuals entitled to claim under the Inheritance (Provision for Family and Dependants) Act 1975. In the interests of consistency, it would be desirable that the proposed rights under Clause 1(7) extended not only to cohabiting partners but also to the issue of such relationships in the same way as new subsection (1C) of the Inheritance (Provision for Family and Dependants) Act to enable all the parents of children to benefit, including those children who were en ventre sa mere at the time of death.
I am a passionate supporter of marriage; I have been married for 37 years, and I worked for about 16 years preparing young couples for marriage. The Bill seeks to provide necessary protection. If the Bill is not the route, then I submit that there are very serious issues that require to be addressed in this context.
Lord Marks of Henley-on-Thames
My Lords, I am grateful to the House for permitting me to speak in the gap. I had not put my name down to speak because I was not clear that I could be here for the whole of the debate. I strongly support the Bill because it addresses a serious and important injustice, which is that under the present law cohabitants, on the death of their cohabiting partners, are left entirely without means of support.
I have listened carefully to the arguments against the Bill, particularly those put by the noble Baroness, Lady Deech. She argues, supported by a number of quotes, that there are many who choose to cohabit rather than marry, and many who would not wish their cohabiting partner to inherit. Such people can of course make a will, making it clear that they do not wish their cohabiting partners to inherit. What we are dealing with here, though, is the default position. Under the present law, a right of challenge or a right to apply for provision is available to people under the 1975 Act, and that will remain the position. However, when one is looking at what the default position should be, I entirely agree with the noble and right reverend Lord, Lord Harries of Pentregarth, that for most intestates, and for society in general, the first priority should normally be given to the relationship in which the deceased was living at the time of his or her death. The Bill, with its modest but important proposals, addresses that priority and gets it right.
I entirely accept the point made by the right reverend Prelate the Bishop of Manchester in suggesting that attention needs to be given to the needs of separating couples who cohabit. I accept that that needs to be answered, and indeed have made that position clear in this House before. I hope to introduce a Bill in due course that will give effect to the proposal of the Law Commission that there should be limited provision for cohabiting couples who separate in those circumstances. However, that is not the Bill before the House. This Bill addresses a limited but important proposal made by the Law Commission, and I urge the House to give it our support.
Baroness Thornton
My Lords, I thank the noble Lord, Lord Lester, for his able, comprehensive and indeed brief introduction to the Bill. I am not going to speak for long because most of the things that need to be said on this issue have already been said. However, I want to say that these Benches support the Bill; we did in Government and we do so now. Indeed, I agree with Professor Elizabeth Cooke, the commissioner who led the review, when she said:
“When a family member dies the process of grieving and of adjustment to change can be made far worse by uncertainty and anxiety about money or belongings. It is vital that the law remains relevant and up to date, reflecting the reality of modern society and reasonable expectations of those who have been bereaved”.
The words of my noble friend Lady Kennedy, the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Marks, are the right, compassionate and fair way to look at this issue.
It would be amazing if there were agreement in your Lordships’ House about such an issue, and I respect the fact that noble Lords have concerns, which they have expressed today. However, I confess that I was saddened by the tone and content of the remarks by the noble Baroness, Lady Deech, which seemed to unnecessarily overstate the effect and exaggerate the malign purpose of this, I think, rather modest Bill; I agree with the noble Lord, Lord Marks.
The first thing that needs to be said on the whole issue is that we have to emphasise the importance of people drawing up wills. I think that the whole House would agree with that, and it is important that we do everything that we can to encourage people to do that. We do not oppose the extension of the qualification to cohabitants under intestacy. I thank the noble Lord, Lord Lester, for introducing the Bill, and we wish it well.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am grateful to the noble Baroness, Lady Thornton, for that response indicating the attitude of the official Opposition to the Bill. I do not follow her entirely on the subject of the contribution of the noble Baroness, Lady Deech—or, indeed, any of the contributions. This has been a robust but courteous debate. Indeed, it brought to mind when the Communist Party of the Soviet Union had its secret conclaves: it always used to issue a statement saying that a meeting had taken place and, “a full and frank discussion had been conducted in a comradely atmosphere”. I felt that that was exactly what we did today. It was a good example of the House dealing with a subject where there are strong feelings and passions on both sides but both sides, while putting their views robustly, also listen courteously. That was helpful to the Government in addressing this and helpful in promoting the broader debate that we would like to see on this issue. Of course, it also helps, as the noble Baroness, Lady Thornton, said, if the fact of this debate gets home to people two sensible pieces of advice: first, make a will; and, secondly, common law protections do not exist.
The noble Baroness, Lady O’Cathain, said that it was only recently that she became aware that the urban myth of the protection of common law marriages was non-existent and I came to that knowledge similarly late in life. I grew up with the understanding that there was such a thing as common law marriage with in-built protections. The introduction of the Bill is extremely important, timely and useful in a process that is under way. We got the right mix between the lawyers and those to whom the noble Baroness, Lady Kennedy, referred as “untainted by law”.
The tenor of the discussion has been about protections for cohabitants, protections for the institution of marriage and a desire to get clarity and understanding in a way that, as the noble Lord, Lord Browne, said, does not add to the complexities of the legal system. My position, almost instinctively, is to want to support proposals by the Law Commission. I am a greater support of its work, and of the new fast-track approach in this House to Law Commission reports. I am equally deferential to any ideas put forward by my noble friend Lord Lester. His track record is such, as the noble Baroness, Lady Kennedy, pointed out, that if he makes a proposal, one should take into account the firm consideration, good research and fierce commitment behind it.
I should, however, make it clear that the Government have concerns about the Bill, and explain why. It is interesting that we had 10 speakers and, if a Division had been called, we would have had a dead heat: there were five speakers on either side. That gives a sense of why the Government are a little cautious, as well the fact that a number of speakers said that perhaps this subject should be part of a more comprehensive and considered approach to these issues.
The Bill addresses two questions. First, what should a cohabitant be entitled to inherit on the death, intestate, of his or her partner? Secondly, when should such a cohabitant be entitled to bring a claim against the estate of his or her deceased partner for financial provision under the Inheritance (Provision for Family and Dependents) Act 1975? Under the law, there may be provisions made for a cohabitant under a will, but there is no provision for cohabitants under the intestacy rule. In many cases, the allocation of property under the will or the intestacy rules will be the end of the matter but, in some circumstances, the surviving cohabitant may be able to make an application to the court for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975. If this application for family provision, as it is generally known, is successful, the resulting court order overrides the terms of a valid will, if there is one, and similarly overrides the intestacy rules where they apply.
My noble friend’s Inheritance (Cohabitants) Bill would equate the position of some habitants with that of spouse and civil partners under the intestacy rules and improve their position under the 1975 Act. Certain cohabitants would therefore be promoted above blood relations on intestacy. These proposals follow the recommendation of the Law Commission in its 2011 report. The Law Commission explained that it has taken the unusual step of including two Bills in its report, because reform of the intestacy rule in favour of cohabitants is rather different from the rest of the recommendations in that report, which relate to the law of intestacy and family provisions more generally.
The commission said that what is now the subject matter of my noble friend’s Bill is more contentious and more likely to be subject to more intense levels of debate than the remainder of the recommendations. This morning’s debate demonstrates the wisdom of that. The commission also commented that,
“this issue has the potential to be divisive and contentious”.
Again, I think that it got that right.
I am not going to try to pre-empt the Government’s decision in relation to the Law Commission recommendations this morning, but it is clear from the nature and contents of, and issues raised in, the debate that there are significant discussions and examinations about this issue still to go on. The Bill would promote the interests of the surviving cohabitants over those of the children of the deceased on intestacy. A number of noble Lords have raised the issue of the problems that that causes. Putting certain cohabitants on the same footing as spouses and civil partners in relation to intestacy would significantly shift the boundaries of what the average person is deemed to be likely to want to happen with his or her estate.
The Law Commission published its report, Cohabitation: The Financial Consequences of Relationship Breakdown in July 2007. In that report, the commission recommended a statutory scheme to create, as a default position, certain legal rights and obligations for living couples who meet the relevant criteria. The Government announced in September 2011 that they did not intend to take forward the Law Commission recommendations for reform of cohabitation laws in this parliamentary term. Proceeding with the present Bill would separate out the law relating to the ending of a cohabiting relationship during life and on death. This is not to suggest that the law in these situations is perfectly aligned at present, but it will be considerably less so if this Bill is enacted. I am not certain that this will be a good development.
In saying this, I acknowledge the arguments of my noble friend and the Law Commission that the reform relating to the property rights of the cohabitants where a relationship is ended by death are distinct from that and should be considered independently of the commission’s recommendations for the reform of the law relating to the property rights of cohabitants where a relationship is ended by separation. However, there is a reasonable view that the rules relating to the end of a cohabiting relationship by death and by separation should be considered together.
I am second to none in my admiration and support, as I have said, for the Law Commission and my noble friend Lord Lester’s work on these and other issues over the years. I have supported his approach to proposals on many occasions in the past and I am absolutely sure that I will do so in the future. I know that my noble friend and the Law Commission would not propose reforms that are anything other than carefully thought-out and technically correct, and supported by a large body of opinion. I acknowledge that there are cases under the present law where the intestacy rules and the family provision rules may operate harshly against people who would under this Bill be qualifying cohabitants.
However, the reforms we are considering in the Inheritance (Cohabitants) Bill are the legal stuff of everyday life. They would affect a large number of people over many years. Such reforms should be carried forward by as broad a consensus as possible of all reasonably minded people. I am not certain that such a consensus yet exists. Indeed, I think that today’s debate underlines the lack of such a consensus.
I am also mindful that while there are arguments to distinguish between the law’s treatment of living and dead cohabitants, there is at least some merit in viewing the living and the dead as part of a continuum that should be dealt with consistently as a whole, rather than piecemeal, which again was a point made by a number of noble Lords in their contributions. The urgency of the case for reform must surely be diminished by the ease with which cohabitants of all kinds can make provision for one another on death by the relatively simple expedient of making a will.
The Government will reply to the Law Commission’s recommendation in due course and in the usual way, and I am not prejudging that decision today. However, I must make clear at this stage that, while the Government obviously will not oppose Second Reading, we have strong reservations. However, I want to say to my noble friend that, as so often, by raising a debate through a Private Member’s Bill and by attracting the kind of contributions that have been made today, he has taken the debate forward in a very constructive way.
I am in a happy position, which is not always the case when one is summing up and has to look through 27 questions asked of the Minister during the debate. But I kept full notes, which, along with the Hansard record of this debate, will be part of the background against which the Government will ultimately make their decisions on this matter. We obviously will not oppose Second Reading and I look forward to my noble friend’s response.
Lord Lester of Herne Hill
My Lords, I am very grateful to everyone who has spoken in this debate. The House will be glad to know that I shall not seek to reply to 23 questions in what I am about to say. I am especially grateful to those who have spoken against my opinions. I always like to hear the other point of view and I remember that the spirit of liberty is the spirit that is not too sure that it is right. I am not sure that everyone always remembers those wise words, once spoken to me by my noble and learned friend Lord Howe of Aberavon.
This is of course a controversial Bill, which is why it was separated from the larger Bill. In her very full speech, the noble Baroness, Lady Deech, said things about the Law Commission with which I do not agree and I would respectfully remind her that the chair of the Law Commission is none other than Lord Justice Munby, an extremely experienced chancery and family law judge. Professor Elizabeth Cooke is the great authority in this area. Of course, the Law Commission is not immune from criticism but I thought that some of the criticisms were not fair.
As the noble Baroness, Lady Deech, said, it is true that the Bill would largely affect the less well off, which is its purpose. The tone of what was said was a bit scornful about cohabiting couples and their children—probably inadvertently. I also think that it is important to look at what other countries have done, including the Irish Republic, which is at least as committed to marriage and to religion as are the people of this country.
Of all the speeches I listened to, the one I found the most important from my point of view was that of the right reverend Prelate the Bishop of Manchester. The thrust of what he said was that piecemeal reform is all very well but one needs to think about more comprehensive reform. I agree with that, which is why in 2008 I introduced my Cohabitation Bill, based on the Law Commission’s proposals, to try to do something broader. That was only four years ago. It took 30 years to get the Human Rights Act, 13 years to get the Equality Act and four years to get the Civil Partnership Act. I hope that we do not have to wait until there is a Labour Government before we can get that kind of comprehensive reform, because it may take a very long time indeed. I hope that although we are in a coalition Government, both partners to the coalition may come to see the wisdom in dealing with the injustices faced by cohabiting couples, the lack of legal protection and how it is the taxpayer above all who has to pick up the pieces because of the inability of successive Governments to tackle the problem.
I was very grateful to the noble Baroness, Lady Thornton, on behalf of the Opposition, for indicating her support in such warm and generous terms. That is a very important statement. The previous Government almost did the right thing. In 2008, they wanted to do the right thing but it came very late; so they said, “Let’s wait and see what the Scots have done”. The Scots have dealt with the problem and the evidence is clear.
I should deal with one point raised by the noble Lord, Lord Grantchester. He asked, “What about other than cohabitants? How are they to be dealt with?”. The answer to that is that the Government have to respond to the wider recommendations of the Law Commission, I think, by Christmas on the general regime of intestate succession and family provision. We are dealing here only with this little Bill.
If the House gives a Second Reading to this Bill, as I hope it will, I propose to do nothing until the Government have responded, as they must, to the main Law Commission report. I want the Government to have the opportunity to think carefully not only in relation to that broader Bill but also to this Bill as it might fit in. I have enormous confidence in the persuasive powers of my noble friend Lord McNally in being able to convince some of his colleagues that perhaps agnosticism is not good enough and that on this subject we need a bit of action. In fact, we need more than a bit of action: we have waited too long with successive Governments doing nothing at all. The victims are the children and the bereaved in partnerships, especially among the poor and the not so rich. I agree with those who said that the withdrawal of legal aid has aggravated that position greatly. Therefore, there is all the more need for clarity in our law and for a safety net. I will not say more at this stage. I know that a very important debate is about to happen. On that basis, I beg to move.