Cohabitation Rights Bill [HL]

Baroness Thornton Excerpts

Friday 12th December 2014 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Lester, and the noble and learned Baroness, Lady Butler-Sloss. I congratulate other noble Lords who have spoken in this debate, although I have to confess that I had a few moments of same-sex marriage déjà-vu, particularly during the remarks of the noble Baroness, Lady Deech, and the noble Lord, Lord Farmer. I congratulate also the noble Lord, Lord Marks, on bringing forward the Bill on behalf of the rights of cohabiting couples and on his comprehensive description of it.

As noble Lords have said, in its publication, Families and Households, 2013, the Office for National Statistics published data on the estimated number of cohabiting couples and noted:

“The number of opposite sex cohabiting couple families has increased significantly, from 2.2 million in 2003 to 2.9 million in 2013”.

As noble Lords have said, this issue goes back to July 2007, when the Law Commission published a report on cohabitation. It focused on people who were living together as a couple but were unmarried, or who had not formed a civil partnership. The report made recommendations concerning the law in relation to cohabitants’ property and finances. The noble Lord, Lord Lester, picked this up—as he put it, he stimulates Governments—and introduced his Private Member’s Bill the following year. It did not make progress at the time, although the then Government were very sympathetic and, indeed, we on these Benches still are.

In its 2007 report, the Law Commission recommended reform and described the current law relating to cohabitation as,

“unsatisfactory … complex, uncertain, expensive to rely on and, as it was not designed for family circumstances, often gives rise to outcomes that are unjust”.

Members of the judiciary have added their voice for change in recent years, with Lord Justice Wall saying in 2011:

“I am in favour of cohabitees having rights because of the injustice of the present situation”.

Noble Lords are right to say that it is of concern that surveys show that more than half of those who cohabit still believe in the myth of common law marriage, assuming that when they split they have automatic rights similar to those available on divorce, even though I understand that this concept has not existed since 1753.

The harsh reality under current English law is that unmarried couples have no financial rights for themselves arising from their relationship, be it long or short and whether or not they have children together. Unless the home is jointly owned, it can be difficult as well as inordinately costly for cohabitants to argue that they have a share in the other’s property. Claims of this nature are determined by reference to complex and esoteric principles of trust law. Financial provision for children will inevitably be limited in duration and, unless the paying parent is very wealthy, limited in amount, too. I say to the noble Baroness, Lady Deech, and the noble Lord, Lord Farmer, that their remarks say, “Tough”. I do not think that it is good enough to say, “Tough”, to those children.

I appreciate that the Bill is based on the Law Commission’s recommendations for reform made in 2007. Under those proposals, financial claims by cohabitants on separation would be more limited in scope than those available to their married counterparts on divorce. The objective would be to redress the economic disadvantage suffered as a result of the relationship—for example, giving up a career to have children—or to rebalance the retention of a benefit from the relationship by the other party, such as a contribution by one towards the other’s property. The Law Commission’s subsequent report in 2011 proposed reform of intestacy law to enable provision to be made for the survivor in the event of death of the other cohabitant. Very sensibly, the noble Lord, Lord Marks, has put those two together.

These proposals for reform are not pioneering. Australia introduced cohabitation legislation more than 25 years ago and other European countries also offer protection to their cohabitees, with recent notable additions to the list being Scotland and Ireland. However, as has already been said, in September 2011, four years after the Law Commission’s 2007 report, there was a Written Ministerial Statement that there would be no action taken by the Government in this Parliament to implement the Law Commission’s proposals.

As has been said, reform of the law relating to cohabitation enjoys widespread judicial support. The cohabitation law in Scotland is working very well. Ireland introduced similar legislation in 2010. Of the Scottish legislation, the noble and learned Baroness, Lady Hale, quoted researchers as saying:

“‘The Act has undoubtedly achieved a lot for Scottish cohabitants and their children’”.

She then said:

“English and Welsh cohabitants and their children deserve no less”.

I think that right-thinking people would agree that the time has come to take up the Law Commission’s proposals on separation, consider a way forward and stop kicking this into the long grass. It is for Parliament to determine what proposals it will implement when the Law Commission reports, but the point of having a Law Commission is to achieve reform in the law, and this law is clearly in need of reform.

Both noble Lords who have spoken from the Liberal Democrat Benches are passionate advocates of this reform. I wondered whether they might not have tried to get it into the coalition agreement. The Liberal Democrats have been part of this Government for five years. The noble Lord, Lord McNally, was number two in the Ministry of Justice. I think that Simon Hughes is the Minister responsible for this area of policy. I ask the Minister why, as the Government took such a progressive line on equal marriage, they failed to consider the impact of the lack of protection for children and partners in cohabiting relationships. They should also take a sensible line on that. It is not a threat to marriage.

Do the Government agree with the Law Commission, the Supreme Court and all the other bodies cited by the noble Lord, Lord Lester? What is the Government’s policy, or are there two policies here? It would help the House to know exactly what the Government’s policy is in this area.