Inheritance (Cohabitants) Bill [HL]

Lord Bishop of Manchester Excerpts

Friday 19th October 2012 Lords Chamber

[The Lord Bishop of Manchester]

My Lords, the Bill introduced by the noble Lord, Lord Lester of Herne Hill, provides a valuable opportunity to consider issues that are of considerable and increasing importance for a large number of people in our society. Reference has already been made to the Law Commission’s 2007 report in which proposals were made for addressing the financial hardship suffered by cohabitants or their children on the termination of their relationship by separation or death. That report followed an extensive consultation exercise by the Law Commission in which the Church of England was pleased to participate.

Our starting point was, and is, that marriage is central to the stability and health of human society, in particular, the faithful, committed, loving, permanent and legally sanctioned relationship between a man and a woman which marriage affords and which continues to provide the best context for the raising of children. For that reason, it warrants a special position within the social and legislative framework of our society. Since marriage contributes to the common good, there is a very strong case for pursuing public policies that promote and encourage it. The other side of that coin is that there is an equally strong case against legislating in a way that makes marriage simply one of a number of choices on a consumerist model.

Nevertheless, as the General Synod affirmed in 2004, the Church of England recognises that there are some issues of hardship and vulnerability for people whose relationships are not based on marriage and that they need to be addressed by the creation of new legal rights. The question for the church is how Parliament, working for the common good, can make proper provision for those who face such hardship and vulnerability while recognising the overarching gift and blessing that marriage provides not only for a couple themselves but also for the wider community.

Adequate steps should be taken to prevent manifest injustice for those who do not bring themselves within the legally recognised institution of marriage or indeed civil partnership. While there are some couples who make an informed decision not to do so, injustice can arise where there is inequality in the respective financial positions of cohabiting parties—I speak here from close family experience. The less financially secure partner might well wish to formalise the relationship, but the other partner may seek to avoid the responsibility that goes with that and decline to do so. The partner in the weaker financial position is then vulnerable as a result and may face hardship if the couple separate or if the other partner dies without having made proper financial provision for the survivor. This sort of hardship can be particularly acute in cases where the couple have a child or children which one of them is then left to look after.

On the face it, therefore, the guiding principle behind the Bill—to alleviate hardship and injustice, especially where one partner dies without making adequate financial provision for the survivor—ought to be welcomed. I do, though, have some concerns about whether the measures set out within this Bill provide the best or the right way to go about addressing what clearly is a real problem.

First, the Bill limits itself to matters of inheritance. That is, of course, an important aspect of the wider set of issues concerned with financial provision for cohabitants, but is it a good idea to address this particular aspect in isolation? If we do, will we not end up with a piecemeal approach to the wider problem? For, at some point, we will need to address the equally important question of what provision should be made for cohabitating couples who separate. The issues of hardship can be equally acute in those circumstances, as I know. Would it not be better for the Government to bring forward proposals that addressed the wider issue, so that a consistent and principled approach could be decided on and applied across the various aspects of financial provision for cohabitants?

Secondly, and perhaps more significantly, the Bill would put a “qualifying cohabitant” in precisely the same position as a surviving spouse or civil partner for the purposes of the legislation that deals with inheritance and intestacy. It would also put a qualifying cohabitant in the position of a spouse or civil partner in cases where the deceased partner had made a will but where it was argued that the provision made in the will did not amount to reasonable financial provision. In conceptual terms, that is of course very neat: it simply assimilates the surviving cohabitant to the position of a surviving spouse or civil partner.

But is that necessarily the right principle? Taking marriage vows or registering a civil partnership is a particular step that a couple choose to make. They make it in the knowledge that it has consequences in terms both of the personal relationship between the partners and of their legal rights and responsibilities towards each other. Cohabitants have clearly not taken that step. It is therefore far from clear that they should be treated for the purposes of the law of inheritance as if they had. The partners would in effect acquire a de facto legal status simply on the basis of things that they had done—living together, becoming parents—but without having made any particular formal commitment to one another and without voluntarily taking a particular status upon themselves. That seems to be a questionable approach for the law to take to people’s relationships.

Some would doubtless argue that, instead of going down this route, government attention and resource might be better focused on ensuring that those in cohabiting relationships more fully understand their legal rights and entitlements and that they be encouraged to take responsibility for making proper legal provision for the other if their relationship status did not automatically confer it.

An alternative approach that the church advocated in its response to the Law Commission consultation is one that I believe still merits serious consideration. The focus would not be on imposing a legal status on couples who had not chosen to enter into marriage or civil partnership; rather it would be based on alleviating hardship in particular cases. It is not obvious that the fact of cohabitation for a minimum period, the length of which would necessarily be arbitrary, should of itself give rise to legal rights. The alternative approach would be legislating to enable financial provision to be ordered where it could be shown that a cohabitant would otherwise suffer manifest injustice as a result of the relationship coming to an end. Financial provision, therefore, would not be automatic; it would be directed to the alleviation of particular instances of injustice, which could include making provision for children of the relationship. That broad, principled approach could be applied equally to the situation where a relationship between cohabitants had ended by separation or indeed by death.

Although I do not think that the Bill here gets things quite right, I am very grateful to the noble Lord, Lord Lester, for introducing it and thereby enabling this debate. This is a subject that we need to address, not least to protect the vulnerable and to prevent injustice, while also affirming, as the noble Lord has done, the huge importance of marriage. We on these Benches would welcome a more comprehensive set of proposals from the Government than I am afraid this Bill, at this moment, appears to offer.