Cohabitation Rights Bill [HL]

Lord Northbrook Excerpts

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

[Lord Northbrook (Con)]

My Lords, in general I am not especially favourable to the Bill in the name of the noble Lord, Lord Marks of Henley-on-Thames, even though it is eloquently presented. I recognise that, according to the Office for National Statistics, the number of cohabiting couples has more than doubled, from 1.5 million families in 1996 to 3.3 million in 2017. I recognise the Bill’s good intentions and its desire to protect cohabitees in vulnerable situations and to protect children from hardship. As has been recognised, there are gaps in the law that can lead to significant financial vulnerability and disadvantage, especially for a woman, when a cohabiting relationship ends due to separation or death of a partner. I realise that, at present, cohabitants have no right to the equitable division of property or other assets following the breakdown of the relationship, as would be the case with divorce. Similarly, in the case of the death of one of the cohabitants, their partner has no right to register the death—dealt with in part, I believe, by Clause 18—or succeed to the deceased’s estate if they died intestate, dealt with by Clauses 19 to 22.

However, the Bill goes beyond those provisions and creates something of an opt-in provision for cohabiting couples with, as the noble Baroness, Lady Deech, said, a low threshold for cohabitation of a continuous period of three years—although that has been edged up from two years in the original 2014 Bill. That is far too short a period and does not constitute a long-term relationship as referred to by the noble Lord, Lord Marks, when in 2014 he cited the 2008 British Social Attitudes Survey.

I should be far happier, rather than extending rights to cohabitees, recommending that they might consider the benefits of civil partnerships, or even marriage, to receive the automatic benefits which they are currently denied as cohabitants. For couples opposed to entering either of those, I rely on an article from Hughes Paddison solicitors, which recommends the following form of protection. First, they should enter a cohabitation agreement and/or a deed of trust which sets out how capital assets—for instance, the home—are to be owned and resolves any other financial issues, such as division of household expenses. Secondly, they should ensure that each cohabitee has executed a valid will in order to protect their partner’s interests and avoid them making an application under the Inheritance (Provision for Family and Dependents) Act 1975. Thirdly, they should make any additional or reversionary provisions necessary to ensure that any pensions allow payments to be made to unmarried partners. Fourthly, they could take out life insurance policies, having ascertained that they will pay out to unmarried partners—as per Clause 16, as I understand it.

Overall, I agree with the noble Baroness, Lady Deech, who said in 2014 that cohabiting couples will be snared unaware in a trap of laws from which there is no escape, except for the opting-out provisions of the Bill. I agree that the effect of the Bill would be to apply almost the whole panoply of marriage law to cohabiting couples, making cohabitation as expensive and legalistic as divorce. The Bill will reduce the willingness to commit long-term and would greatly increase the stress of couple breakdown.

I also agree with the noble Lord, Lord Farmer, in the same debate that the Bill would discourage marriage and that it would be far more beneficial to rebuild the social fabric to encourage marriage—and, I add, civil partnerships. The right reverend Prelate the Bishop of Oxford—then Bishop of Sheffield—made an interesting point in 2014. He argued that any confusion over the rights of cohabitants should be dealt with by education, not legislation. He also said that the Bill creates a quasi-legal matrimonial structure based on an arbitrary length of cohabitation, a concept which itself is hard to define and has all kinds of unforeseen consequences. I noted the interesting comments of my noble friend Lord Lexden about siblings and those of the noble Baroness, Lady Deech, about the Children Act 1999 covering certain circumstances, and the dangers of the retrospective Clauses 7 and 14.

In summary, although I praise the Bill’s good intentions, I have considerable misgivings about the problems it could create.