Cohabitation Rights Bill [HL]
Debate between Baroness Deech and Lord Lester of Herne Hill
Lord Lester of Herne Hill (LD)
My Lords, it is an enormous pleasure to follow the noble and learned Baroness, Lady Butler-Sloss, who knows far more about this subject than I could hope to learn and speaks with great authority as, among other things, a former senior family judge. Like her, I should say straightaway that I am married. I have been married for 42 years and my wife has put up with me throughout that time. I am a very strong supporter of marriage. If I thought that this Bill would deter people from marrying, I would oppose it, and if I thought that it would coerce people into cohabiting relationships, I would find that inappropriate for the state. It does no such thing.
I should begin by expressing my gratitude to my noble friend Lord Marks of Henley-on-Thames for introducing a Bill that is more modest than mine, except in relation to a two-year rather than a five-year period. As I say, in other respects it is more modest and probably more realistic and in accordance with what the Law Commission has recommended. We have to live a very long time and we have to be very patient to achieve social reform in this country. Governments lack the imagination and energy to do it themselves, so we have to stimulate them, unfortunately, with Private Members’ Bills—or perhaps fortunately, since otherwise nothing would happen.
My noble friend Lord Marks got history slightly wrong. The first time I engaged with this was in 2002 at Second Reading of my Civil Partnerships Bill. In that Bill, I provided for opposite-sex couples as well as same-sex couples to be able to enter into civil partnerships. I did that because I was advised to do so by Stonewall, which thought that it might make the Bill more acceptable. Curiously, there was complete agreement about the need for gay and lesbian couples to be civil partners, but some of the more conservative and orthodox Bishops opposed the stuff about opposite-sex couples because they thought that it would threaten marriage. It does seem to worry people but there is no evidence from any country, including this country, that the existence of civil partnership schemes, as in Ireland or something more modest such as my noble friend’s Bill, in any way discourages marriage.
On the contrary, as Resolution has pointed out in its submissions and as the Royal Commission has observed, the evidence is that it does not in any way discourage marriage. It provides a safety net in order that, instead of the state having to bail out through public finance the consequences of irresponsible men abandoning the women and children they have been involved with and putting the women—the mother—on social security, it makes the bad men pay instead of us as taxpayers, which I hope that the noble Lord, Lord Farmer, understands. If one looks at this Bill through the eyes of an economist or someone concerned with money, the effect is to transfer some of the burden away from the state on to irresponsible common-law husbands and fathers.
The noble Baroness, Lady Deech, is the most doughty, indefatigable campaigner against everything that I have just said. I hope she will not mind my saying that, if I put in the scales her views and the views of the Law Commission, the noble and learned Baroness, Lady Butler-Sloss, the Supreme Court of the United Kingdom and Resolution, they and their evidence seem to me to be more persuasive.
Baroness Deech
Perhaps the noble Lord will allow me an intervention. On one side of the scales we have lawyers, not the public. The consultees who responded to the Law Commission who were members of the public were largely against this. Even the Supreme Court has a variety of views. On my side of the scales, I offer the public.
Lord Lester of Herne Hill
I am grateful for the intervention, but it does not match the facts. Resolution, for example, indicated what it called,
“strong public support for change: almost 90% think that a cohabiting partner should have a right to financial provision on separation if the relationship has been either long-term, involved children, or has involved prioritising one partner’s career over the other’s”.
It gives other evidence as well, in which I am sure the noble Baroness would be interested.
Going back to the judiciary and the Supreme Court, my noble friend Lord Marks referred to the noble and learned Baroness, Lady Hale. Although she is outstanding in all respects, what was impressive about the Gow case was that the three English members of the Supreme Court—Lord Carnwath, Lord Wilson and the noble and learned Baroness, Lady Hale—all said the same thing. They all referred to Professor Elizabeth Cooke, the Law Commissioner who leads the commission’s work on this. They quoted her as saying:
“‘We hope that implementation will not be delayed beyond the early days of the next Parliament, in view of the hardship and injustice caused by the current law. The prevalence of cohabitation, and of the birth of children to couples who live together, means that the need for reform of the law can only become more pressing over time’”.
The other two members of the Supreme Court were Scots. Since it was a Scottish case, they dealt with the Scottish issues. However, these were the three English Supreme Court judges speaking as one. They said:
“As Prof Cooke also pointed out, the ‘existing law is uncertain and expensive to apply and … often gives rise to results that are unjust’ ... There was no need to wait for experience north of the border to make the case for reform”.
I know perfectly well, because the coalition Government have said so, that they have no intention of doing anything about this during the lifetime of this Government. I also know perfectly well that the Conservative part of the coalition is deeply opposed to such a measure because it is considered to undermine marriage in exactly the way that the right reverend Prelate was worrying about. I repeat that there is no evidence whatever for that. I think that having a modest safety net, which is all that this Bill is, is better than saying to couples who do not understand the law or understand the limits of being in a so-called common law marriage, “It is better to marry than to burn”. That was said by St Paul, but I do not regard it as a guiding principle for legislation.
This being Liberal Democrat core policy, I can only say that I am delighted to await the views of the Official Opposition on this, as the only hope that I can see for such a measure being adopted is a change of government. It will not happen under a Conservative Government and it probably will not happen under a Conservative coalition Government; it can happen only if there is a Labour Government or a Labour coalition Government. I am sorry that that is the position because I would have hoped that the issue could transcend party politics. I am sure that there must be some within the Conservative Party who understand that this is a conservative measure doing limited justice to a very vulnerable group.
Lord Lester of Herne Hill
I am grateful for the advice about how I should vote. Since I will not have a vote, it does not make much difference.
I want to say something about British Muslims. It is a very important subject. There are 2.7 million British Muslims, I believe, in this country. There are 300,000 British Jews in this country. Because of the injustice of British Jewish orthodoxy about the so-called chained wives, I and others introduced a Private Member’s Bill, which was supported by the noble and learned Lord, Lord Mackay of Clashfern, to enable an injustice done to a very small number of orthodox Jewish women to be remedied. How did we—the noble and learned Lord, Lord Mackay, and the rest of us—do it? We did it by saying to orthodox Jewish men, “If you want to leave your wife for somebody else without getting a get”—a written consent—“you will not be able to get a civil divorce and you will therefore not be able to remarry”. We put that in a Bill because the Chief Rabbi and a small number of Jewish victims needed it.
I was then told that my Bill was discriminatory because we did not give the same benefit to Muslims, so we amended it to give the same benefit to Muslims if they asked for it to be applied to them. The male-dominated hierarchy of British Muslims did not do so and the position is exactly as the noble and learned Baroness, Lady Butler-Sloss, said: many Muslim women are now extremely vulnerable because they do not have registered civil marriages; instead, they have unsatisfactory arrangements that give them no protection if the men treat them very badly. I am not suggesting that the whole of this Bill is designed to deal with that—not at all—but I am suggesting that it is not something that we can ignore on the grounds that this is a small minority, if that is what the noble Baroness, Lady Deech, meant to say.
Baroness Deech
My Lords, I think that is a rather unfair comparison. Jewish marriages are carried out according to the law of this land. In fact, as far as I understand it, the Jewish orthodoxy insists that a couple get married according to the law of this land. I disapprove of the way men use get just as much as the noble Lord does. That provision was only to try to put pressure on the men to give a get, and it does not necessarily work. What we are talking about is people complying—at least, they ought to comply—with the law of this land. We ought to be encouraging, as a matter of integration and the rule of law, that Muslim marriages are carried out according to the law of this land. That is what Jewish marriages do. They are registered civilly, like any other—100% kosher. Muslim marriages should not be allowed to escape under the net. We must help people by insisting somehow that they get married properly.
Lord Lester of Herne Hill
I do not disagree with that as an aim, but I think I am more in favour of choice than the noble Baroness. The thing about the Bill—and about Jewish marriage law—is to encourage choice and protect vulnerable people. This does not force people into cohabitation. It does not force people into marriage. It does not force Muslims into having to register their marriages as civil marriages. It does not do any of those things—it simply provides a basic safety net, and that safety net should apply to everyone, including British Muslims. I am sure that is common ground.
Inheritance (Cohabitants) Bill [HL]
Debate between Baroness Deech and Lord Lester of Herne Hill(12 years ago)
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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.