All 1 Baroness Deech contributions to the Cohabitation Rights Bill [HL] 2017-19

Fri 15th Mar 2019
Cohabitation Rights Bill [HL]
Lords Chamber

2nd reading (Hansard): House of Lords

Cohabitation Rights Bill [HL] Debate

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Baroness Deech

Main Page: Baroness Deech (Crossbench - Life peer)

Cohabitation Rights Bill [HL]

Baroness Deech Excerpts
2nd reading (Hansard): House of Lords
Friday 15th March 2019

(5 years, 2 months ago)

Lords Chamber
Read Full debate Cohabitation Rights Bill [HL] 2017-19 Read Hansard Text
Baroness Deech Portrait Baroness Deech (CB)
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My Lords, the noble Lord, Lord Marks, and I have one important issue in common. Every year for the past four or five years, he and I have introduced Private Members’ Bills intended to reform family law—and every year, the Government reject them. We have dealt with a series of Ministers, few of them with any experience in family law, and I have the impression that the Government are loath to embark on the major overhaul of family law needed for the 21st century.

As best as I can discover, the average length of a cohabitation in this country is just under five years, according to the Institute for Family Studies; that is, the three-year period provided for in the Bill is shorter than average. Without doubt, parents who are not married before having a child are far more likely to split up than those who are married. This is similar across many countries, some of which give rights to cohabitants while others do not, but most of those countries have fixed and far less discretionary law relating to the division of assets.

The Bill would make the end of cohabitation disputes as expensive and legalistic as divorce. It is drafted with too much judicial discretion, and we know that that leads to a very high proportion of a couple’s assets going on legal costs. Given that cohabitants tend to be the younger and less well-off, they would be open to greater deprivation and more pressure being applied by one former partner threatening to sue unless the other complied with their demands. A cohabitation law is likely to deter even more men, typically, from providing the stability that children need, judging by public attitudes to the prospect of a cohabitation law. I collect comments from the Guardian, such as:

“Do not foist legal obligations on people who have not explicitly chosen to undertake them”;

“Time to respect people’s life choices not limit them”;

“Getting really tired of the illiberal campaigns to compel cohabiting couples into a quasi state-determined relationship”.

People who cohabit have the right to respect for their private lives and decisions—a right breached in particular by the retrospective application of the provisions of Clause 7—and now that civil partnerships for heterosexuals will soon be available, there is no necessity for this law at all. If people will not marry and not enter into a partnership, clearly they wish to be left alone by the law and not boxed into a corner.

I have called this law a bedroom tax, and so it is: share your bedroom and you will have to pay for it. This is thoroughly illiberal. Cohabitation is growing in popularity, maybe because it avoids the heavy financial penalties of a failed marriage and divorce. It is curious that English law attaches such heavy financial obligations to a sexual relationship, no matter how brief, but ignores the equal demand for fairness by siblings, a topic on which the noble Lord, Lord Lexden, whom I fully support, has spoken. It is often said that cohabitants are as committed to each other as married people and that that justifies similar legal treatment, but “commitment” is not the word. Commitment lasts as long as it lasts. What couples need and respect is the express assumption of responsibility, and studies have shown that drifting into a relationship does not mean the same to the partners, especially the men, as the deliberate assumption of responsibility for each other—which, incidentally, is shown by the many cases of siblings living together that your Lordships have had before them.

Another reason this law is unnecessary is that Schedule 1 to the Children Act 1989 provides for financial provision for children, in addition to the Child Maintenance Service. The 1989 Act can operate to provide a lump sum, property or education costs or to transfer the home to the unmarried parent for the benefit of the child, and that is how it should be. We should be worrying about provision for the children of these relationships, not the short-term cohabiting partner. Child maintenance and the unwillingness of fathers, married or not, to do the right thing, has been a stain on our system for ages, and I wish the legal profession were as demanding for reform on that score as it is in relation to the more lucrative asset division between partners.

Turning to the drafting, I highlight first the provisions about retrospectivity. Clause 7 allows former cohabitants to apply with two years of the end, or longer if the court judges the circumstances “exceptional”. This opens the door to a massive number of claims, pressures and costly proceedings to determine whether a situation is exceptional, which is a wide open concept. Under Clause 2, people living together now will find that the law applies to them, even though they had no knowledge of this trap when they started to live together. Under Clause 3, people who continue to live together, although not as a couple, will find that that counts as cohabitation too. Under Clause 14, the court may set aside an opt-out agreement if it is “manifestly unfair”. One could hardly devise a phrase more likely to lead to dispute, especially when our principles of maintenance are undefined and our support law desperately needs reform. What a charter for dispute and expense this is.

Possibly the most unwelcome part of the Bill is that relating to intestacy. In brief, it gives the surviving cohabitant rights over the property of the deceased, which will pit the cohabitant against the deceased’s children, his widow—if there is one—and other close family. The bitterest disputes we see over legacies are precisely these. Cohabiting partners already have rights to claim under the Inheritance (Provision for Family and Dependants) Act 1975, which has been enlarged. The Law Reform (Succession) Act 1995 enables cohabitants of two years standing to claim without proving dependency. Those Acts enable discretion to apportion between the cohabitant and the blood family, whereas under the Bill the cohabitant will take priority.

Some 87% of the population leave less than £500,000 behind them; according to a study by Irwin Mitchell, the average inheritance is very little. If the first £250,000 is taken by the cohabitant, this will mean in most cases next to nothing for the children, who will most likely have been the children of divorce and who were perhaps not properly maintained during the deceased parent’s lifetime. It is a double blow, likely to lead to litigation or pressure for settlement, reducing the available sum still further. The surviving cohabitant may go on to another relationship, but the children of this younger generation, so handicapped in relation to housing and education debt, deserve in my view the first slice of their parents’ legacy.

The Bill will be unpopular with the public once they grasp its extent and uncertainty. It is an attack on the lifestyle of a certain group. Some may not wish to marry each other but to try out the relationship. Older people who live together—as I have heard from Members of this House—but who have refrained from marriage especially to protect their inheritance for their children and not have it forcibly transferred to a new partner, will be very upset by this. We do not have forced marriage in this country; even if there are expectations on the part of one partner, or if one has refused to marry the other, that is no reason to impose a regime on them. Why should a woman with a good career, who is disappointed that her partner will not marry her, have to face a claim by that partner if he leaves her? We should observe the human rights of privacy and respect for family life, which are interfered with by the Bill. Private adult choices should be respected. The claims of children are already legislated for, and there is provision in existing statutes for the surviving cohabitant without damaging the rest of the family. As a society, we want stability for our children, whether their parents are married or not. Extending cohabitation law to shorter than average relationships will not achieve this.

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Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames
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My Lords, I am very grateful to all who have spoken in this debate, and particularly to the Minister, the noble Baroness, Lady Vere, for her helpful explanation of what the Bill and the Law Commission’s recommendations do. I said at the outset that the Bill only implements the two Law Commission reports. I re-emphasise that those reports were consequent upon long and detailed consultations, taking evidence in which a very wide variety of opinion was expressed. Although there was much in the noble Baroness’s speech with which I agreed, there was a certain amount with which I disagreed, which will not surprise her. However, one of the fundamental points she made was that there was no consensus. Among the legal professionals, the judges, the Bar and the solicitors’ professions, there is a very wide consensus on this issue. Of course there are dissenting voices, but there is a very wide consensus that the Law Commission found a very good balance.

I emphasise that the Bill is about choice. It is about allowing people to choose between marriage, civil partnership and cohabitation. Those choices are made by people and they are to be respected. However, the point of these very modest proposals is to ensure that, if people choose cohabitation, they are not subjected to the unfair disadvantage that flows from taking on obligations—looking after children, providing assets and providing contributions, whether in kind, money or care—that then leave them bereft of support when the relationship breaks down. The Law Commission’s proposals and this Bill are designed simply to redress that balance.

I do not agree with the noble Baroness, Lady Deech, on two points. First, I do not agree that the existence of judicial discretion necessarily means that more cases are going to court. That is not the experience. Indeed, although some very well-known and high-profile cases end up in expensive disputes, the vast majority of divorce cases settle amicably because divorce lawyers and parties understand roughly what will happen. The experience of Scotland—

Baroness Deech Portrait Baroness Deech
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If the noble Baroness, Lady Shackleton, were here, she would say that the settlement costs a fortune. We do not know how much it is in legal costs, but the fact that people do not go to court does not necessarily mean that a lot of money is not spent.

Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames
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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.