Cohabitation Rights Bill [HL]

Lord Lexden Excerpts

2nd reading (Hansard): House of Lords
Friday 15th March 2019 Lords Chamber

[Lord Lexden (Con)]

My Lords, I shall be relatively brief, for I have just one specific, though very important, issue to raise.

I have spoken on many occasions in this House about the urgent need for legal rights to be conferred on family members, particularly siblings, who choose to live together in adulthood, sharing their lives in committed, platonic relationships which in many cases endure until death. They remain scandalously unprotected by existing law, as the noble Baroness, Lady Deech, has also emphasised on many occasions.

Denied the option to form civil partnerships—though, contrary to widespread belief, there is nothing in the civil partnerships legislation to say that any sexual element is needed—they are denied all the rights that both married couples and civil partners enjoy. Yet cohabiting couples who are related by blood are no less likely to be either financially or emotionally interdependent than those whose union is sexual.

The hardships that must be borne by those who live together in a relationship based on family ties range from the denial of shared income tax allowances and pension rights to complications with passing on rented tenancies after the death of the first cohabitant and the denial of the spousal exemption from inheritance tax. Without the last of these, many cohabiting family members who bought their homes jointly decades ago, when property was comparatively cheap, face old age with the anxiety of knowing that they may be forced to sell the home, with all its much-loved associations, to raise inheritance tax when the first member of the couple dies.

Some of the provisions of the Bill before the House today—the right to have an insurable interest in the life of a partner, the right to succeed to a partner’s estate under intestacy rules, and so on—would be of the greatest value to cohabiting siblings and other family members who pair up, whether as companions through life or, as is frequently the case, as carers of an elderly relative. So I ask: why should they be excluded from this Bill simply because their relationship is platonic? Why single out for discrimination the only group of people left who have no access, through any means, to any legal rights and are crying out for them? Why assume that the only kind of relationship worthy of legal protection should be one based on sex, when two family members living together in adulthood in the way I have described so obviously represent a social good?

The Government are soon to extend the right to form civil partnerships to opposite- sex couples. Those who cohabit but are closely related by blood will, shamefully, continue to be excluded from all the attendant rights. Last month, during the passage of the Bill that will bring about the extension of civil partnerships, I said that committed, long-term cohabiting siblings look on with anger and astonishment as the Government continue to do nothing to relieve them of the constant anxieties they endure in the absence of joint legal rights.

This Bill, with its specific insistence that those within the prohibited degrees are to be excluded from its provisions, is inevitably a disappointment to cohabiting family members. It could have been a golden opportunity to put things in a better state for cohabiting family members, who deserve parliamentary and governmental action to remove the discrimination under which they have laboured for so long. I ask the noble Lord, Lord Marks, for whom I have high regard, to reconsider the exclusion of family members from the scope of the Bill.

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[Lord Marks of Henley-on-Thames]

My Lords, I agree with that but it will not have escaped your Lordships’ attention that the noble Baroness, Lady Shackleton of Belgravia, has a particularly niche practice in an area where costs do not always matter a great deal. If one is talking about the generality of cases, I am not sure that her experience—knowing her from a professional as well as a personal viewpoint—really adds to the debate. Most cases settle; the experience of other jurisdictions—Scotland in particular—suggests that. There have not been many contested cases in Scotland. Gow v Grant was one that got to the Supreme Court; it was very important and high profile, but I suggest that what the noble and learned Baroness, Lady Hale, said in that case is an important lesson for us all.

I draw attention to some of the points made by the noble Lord, Lord Northbrook. Having gone into the reasons for the Bill and the unfair disadvantage that it was designed to offset, he then pointed out that the advice of solicitors is that people in cohabiting relationships can make cohabitation agreements, opt-out agreements and wills. Those protections enable people to give effect to their choices. I take the point of the noble Baronesses, Lady Chakrabarti and Lady Vere, that these cost money, but I suggest it is only a limited amount if you are simply certifying that you have had advice, much as people do when taking out a mortgage. The real point, made by my noble friends Lady Featherstone and Lady Burt, is that while people can choose, many do so against a background where they believe wrongly that they have relief or rights anyway as part of a common law marriage. They are then stuck in that belief and led to disadvantage as a result.

I will address a few more points briefly. The point about intestacy is that it is unfair that the children, parents and siblings of those in former marriages take precedence in all cases over cohabiting partners, to the extent of being able to evict those partners from their houses. That is wrong. We know that people die intestate. We know that a very large number of people do not make wills, even though anyone would tell them that they were well-advised to do so. The effects of that can be very damaging.

The noble Baroness, Lady Deech, said that this would be unpopular, but it is not unpopular in Scotland, Ireland, Canada, New Zealand, Australia or other areas that have this legislation or something like it. Of course there are dissenting voices, but overwhelmingly, this sort of relief is popular. Last time, the noble Lord, Lord Northbrook, commented on the contribution of the noble Lord, Lord Farmer, to say that there is no evidence—indeed that there is evidence to the contrary—that protections such as this have an adverse impact on marriage. The evidence from studies is that there is no impact on the rate of marriage from changing the law relating to cohabitation in a jurisdiction.

The point made about the Children Act 1989 is a bad one. Schedule 1 claims under that Act can be brought only in respect of minor children. We have very many cases where, as people get older and their children leave, they are left in their home—if left by their cohabitating partner—with no support. Those are very damaging cases. A claim under the Children Act will not help them if they have given up their careers and lives to look after children until the relationship suddenly breaks down later on. Those mothers—it is usually but not always mothers—need protection.

Finally, as everybody does, I have a great deal of respect for the point made by the noble Lord, Lord Lexden, and for his tenacity in campaigning for the rights of siblings and blood relatives. But I think he knows—the noble Baroness, Lady Vere, said that I would probably take this view—that while I agree with every point he made about the unfairness to siblings and blood relatives of many of the fiscal provisions of our law that leave such blood relatives at a significant disadvantage during life, on succession and in relation to landlord and tenant matters, this is not the Bill for them. As the noble Baroness, Lady Vere, said, this is a Bill for cohabitants living together in an intimate relationship.

[Lord Lexden]

My Lords—

[Lord Marks of Henley-on-Thames]

I will give way at the end of the next sentence because I hope to offer some further measure of agreement with the noble Lord. I urge the Government to look very carefully at the points that he has made, take them to the Treasury and see what can be done to ensure that the significant unfairnesses to which he points are redressed by fiscal measures.

[Lord Lexden]

I thank the noble Lord for his powerful and eloquent support for the basic points that I was making. Perhaps I may express the hope that, should I bring forward another Private Member’s Bill to try to redress the injustice for family members, I can look forward to his powerful and eloquent support on that occasion.

[Lord Marks of Henley-on-Thames]

My Lords, I am bowled over by the noble Lord’s praise and hope of support, and of course I will give it to him. I agree with his points but not in the context of a Bill about intimate relationships such as cohabitation.

I believe that I have dealt, probably at greater length than I should have done, with the questions raised in this interesting debate. I accept the points made by the noble Baroness, Lady Chakrabarti, that we have got into a terrible state with legal aid, but I do not think that that undermines the Bill.