Cohabitation Rights Bill [HL]

Debate between Lord Wolfson of Tredegar and Baroness Levitt

2nd reading
Friday 17th July 2026 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I pay tribute to the noble Lord, Lord Marks of Henley-on-Thames, who has pursued this issue with—if I may say so—characteristic persistence and conviction over many years, introducing substantially similar Bills on a number of occasions. These Bills undoubtedly raise important questions of law, policy and fairness.

I do not begin from the proposition that there is no problem to be addressed. There plainly are cases in which the breakdown of a long-term cohabiting relationship can leave one party, often the economically weaker party, in circumstances of genuine hardship. There also remains a widespread misconception that common-law marriage exists, and that couples who live together automatically acquire legal rights equivalent to those of married couples. They do not. That misunderstanding has been recognised by Governments of different political persuasions and is reflected in noble Lords’ speeches and the Government’s current consultation. The question is not whether there is an issue, nor whether some cohabitants deserve protection, but whether this Bill provides the right legal and constitutional answer.

I approach this debate not only as a lawyer but as someone who believes that there is an important constitutional principle which underpins much of our private law. That principle is autonomy. I would put it this way: the common thread running through our private law is not paternalism, but autonomy. The law exists to enable adults who are capable to make deliberate legal choices for themselves and not to relieve them of the need to make those choices. That principle runs through countless areas of our law. When two people decide to marry, they voluntarily assume a legal status containing both rights and obligations. If they prefer, they can enter into a civil partnership. If they want to regulate their financial affairs without marrying or without a civil partnership, they can execute an agreement or a declaration of trust governing ownership of property. If they want to decide who inherits, they can make a will. While they still have capacity, people now can determine who makes decisions on their behalf if they one day lose that capacity in the form of a lasting power of attorney. Each of those legal mechanisms expresses a simple but very profound principle. The law provides a framework, but adults make the choice.

This Bill, however, proceeds from a very different premise. In effect, it says that significant legal obligations should arise not because people have chosen to undertake them but because Parliament has inferred them from the existence of a relationship. That is a significant constitutional step. Of course cohabitation deserves respect. Millions of people choose to live together without marrying for different reasons. Some might marry later, some will never marry and some consciously reject marriage; that is entirely a matter for them. The issue is whether Parliament should transform what, at its heart, is a factual relationship into a legal status without the conscious and voluntary agreement of the people whose lives it governs.

That is why the difference between marriage and cohabitation is fundamentally important. Marriage and civil partnership are not simply descriptions of a relationship; they are legal institutions. They arise because two adults consciously decide to assume legal obligations towards one another before the law. Cohabitation is different. It is a factual circumstance. People may cohabit for months or years. They may intend eventually to marry. They may positively decide never to marry. They may have religious reasons for cohabiting. There could be financial reasons or family reasons. Those could also be reasons why they have chosen not to marry. They may simply prefer not to enter into a legal relationship. The reasons ultimately do not matter. The critical point is that the choice is theirs and belongs to them. I listened carefully to the very interesting speech from my noble friend Lord Bailey of Paddington, who made some of these points very sharply. He also pointed out very clearly that the characteristics of Jewish mothers are not limited to mothers who are Jewish.

One of the themes running through the noble Lord’s Bill is that after a period of cohabitation, or immediately where there is a child, the law should intervene by default unless the parties have taken positive steps to opt out. That reverses what I suggest is the proper constitutional starting point. I understand why the noble Lord has adopted an opt-out model; indeed, the Government’s current constitution proposes a broadly similar approach. But there are issues, and I look forward to the Law Commission’s report, with an opt-out model. The choice between an opt-in and an opt-out model is not a drafting detail but a fundamental issue. I am sure the noble Lord the Minister will have something to say on that. There may be a point between us on this.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)]

The noble Lord called me “the noble Lord”.

[Lord Wolfson of Tredegar (Con)]

I am sorry. I did slip into that. I know that sometimes people say “the noble Lord”; I was not trying to be rude or forget that the Minister is in fact a noble Baroness. I hope she will forgive me; it was entirely accidental and unintended.

My Lords, and the noble Baroness the Minister, there is another reason why I have reservations about the Bill, and this is a serious point. There is a constitutional principle engaged here as well, which is the rule of law. One of the points about the rule of law is that the law has to be certain. People have to know where and when legal rules, rights and obligations arise. The law should not leave people guessing where they have inadvertently entered into a legal relationship carrying significant financial consequence. Marriage does that; you know when a marriage begins and when a marriage legally ends. There is no uncertainty when those legal obligations arise. The same is true of a civil partnership, but this Bill is fundamentally different.

One of the first questions the courts will have to answer is: when precisely did these two people become cohabitants for the purposes of the Act? Was it when they first stayed together most nights, when they gave up one property, when they opened a joint bank account or when they began introducing each other as partners? Those are fact-sensitive questions.

To pick up a point made earlier, if you want to increase the role of lawyers and increase legal costs, you introduce a lot of fact-sensitive questions. The decision in Kimber v Kimber illustrates that there is no single, decisive test for determining whether two people are living together as a couple. I fear the Bill would increase uncertainty by increasing judicial discretion, and that makes outcomes more difficult to predict.

It is sometimes said that these proposals simply recognise the reality of modern life. I agree that, at least at some point, the law should come into some sort of contact with reality. But recognising reality is not the same as creating legal status. The Bill would come close to creating what has sometimes been described as marriage without consent. The state should be slow to impose legal obligations that people might have deliberately chosen not to assume.

Freedom means more than the freedom to make choices. It also means accepting responsibility for those choices. The law should support people in making informed decisions but should not too readily relieve them of the consequences of deciding not to enter into legal relationships carrying defined rights and obligations. That does not mean we should be indifferent to genuine hardship. Where children are involved, in particular, their welfare must be of the greatest importance. I look forward in particular to what the Law Commission says in that regard.

I will take a moment to pick up the points made by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Gohir, about religious marriage and women being left in a very difficult position if they have had only a religious marriage and not also a civil marriage that gives them civil legal rights and protections. I think I am right in saying that the United Synagogue will not marry you religiously unless, at the same time, it marries you civilly. That is worth looking at; I know it has been brought before this House on previous occasions. It is worth looking at from the position not of treading on people’s religious freedoms but of protecting women in particular and making sure they have the legal rights they ought to as members of our civil society. But we do not need this Bill to do that, and we should not use it to do that.

While I have serious concerns about the Bill, I am also conscious that the Law Commission is looking at this very issue. The Law Commission is one of the unsung heroes of our legal and constitutional settlement. I look forward to its work, which is invariably of an extremely high quality. For those reasons, although I have concerns about the Bill as drafted, I look forward to continuing conversations around this issue and the Bill in light of the work of the Law Commission.