Cohabitation Rights Bill [HL]

Baroness Vere of Norbiton Excerpts

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

[Baroness Vere of Norbiton (Con)]

My Lords, I begin by thanking the noble Lord, Lord Marks, for introducing this Bill and enabling the House to debate the important questions of whether new rights should be provided for cohabiting couples and, if so, what those rights should be.

I will start by giving a brief overview of the Bill’s proposals. Currently, cohabitants have some legal protections when their relationship comes to an end, but these are more limited than those of married couples and civil partners and depend on the individual circumstances of each case. With certain exceptions, a cohabitant can acquire property rights in relation to his or her fellow cohabitant only by entering into a contract or trust under the civil law. Similarly, cohabitants’ legal rights are more limited than those of persons who are married or in a civil partnership if one of the cohabitants dies. In cases where a cohabitant has died and made a will, their surviving partner may inherit, but where a will has not been made the law gives priority to any surviving blood relatives, such as parents, siblings or children.

The Bill before your Lordships’ House today defines cohabitants as two people who have lived together for at least three years, have a child or are recognised in law as having a caring responsibility for a child. Part 2 of the Bill seeks to make provision for financial settlement orders in certain circumstances. The court could do so only if it were satisfied that the couple had ceased living together as a couple and, as a result of qualifying contributions the applicant had made, either the respondent had retained a benefit or the applicant had an economic disadvantage.

I am very aware of the interest in these matters and in family law more widely in your Lordships’ House, and of the considerations given to proposals today and during other debates. The noble Baroness, Lady Deech, questioned the wide discretion that would be given to the court. How the court makes decisions of the kind in these proposals will continue to draw sharp differences of opinion. For their part, the Government are considering what, if any, changes might need to happen to the law in this area. Across the range of opinion of Members of this House, family judges and legal practitioners, there does not as yet seem to be any clear consensus on how to limit the court’s discretion in practice.

Then there is the issue of the opt-in. Under the Bill, qualifying cohabitants are automatically opted in to the Bill’s framework of rights in the event of separation unless they have made an opt-out agreement during their cohabiting relationship. This point-out agreement can be valid only if each person in the cohabiting relationship,

“has separately received legal advice”,

and confirmed in writing that they have understood the effect of the agreement. Some might feel these proposals are somewhat costly and perhaps a little bureaucratic. This was noted eloquently by the noble Baroness, Lady Chakrabarti, and it was a pleasure to have her on my side—sort of—for a change.

The Bill also seeks to give cohabitants certain rights on the death of one of the couple. It gives the survivor the same rights to inherit under the intestacy rules, and to make claims under the Inheritance (Provision for Family and Dependants) Act 1975, as a spouse or civil partner. It also gives the surviving cohabitant the same rights as other family members in relation to the registration of death. Lastly, the Bill gives cohabitants equivalent status to spouses in relation to certain types of insurance payments and policies, and the payment of damages in the event of a fatal accident.

The Government understand the reasons of the noble Lord, Lord Marks, for seeking these provisions. However, for a number of reasons the Government have reservations about the Bill. The proposals in this Bill could be seen by many as taking away their fundamental freedom to be in a relationship with someone for whatever length without the state imposing obligations on them. The Bill therefore raises a fundamental question about the role of the state in relationships that have previously had little in the way of a legal regime. The debate today has been penetrating but has also revealed a divergence of views. There is much more work to be done before Parliament can resolve this issue.

Some also argue that for many people cohabitation is a lifestyle choice rather than something in need of a legal fix. A significant number of people today choose to live together with their partner without marrying or formalising their relationship in another way. For some, the choice to cohabit may reflect in full or in part their rejection of the rights and responsibilities that come with a legal union. Some couples may resent the idea of incurring financial responsibilities to each other not by choice but simply as a result of the way they have chosen to live and of the period over which they have chosen to live that choice. Children, of course, are already entitled to child maintenance regardless of the marital status of their parents.

There is a question, too, of how far it would be understood that a person could suddenly find themselves faced with financial obligations to their former partner because they were unaware of their new legal status. In that sense, the Bill introduces a new risk of a cohabitant unknowingly acquiring legal responsibilities to another person. The state and the law do not regulate the formation of cohabiting relationships in the same was as they do for marriage or civil partnerships. In other words, when did the relationship start? On what date did you actually start cohabiting? This is enormously complex and very difficult to define.

The legal challenge remains how to equip prospective cohabiting couples to make informed choices. The Government acknowledge that there is a widespread belief that there is something called “common-law marriage”. The National Centre for Social Research reported in January that about half the people it surveyed believed that this was the case. However, as mentioned by my noble friend Lord Northbrook, the solution to this is perhaps not more legislation but education.

There is also a need to recognise how the legal landscape is potentially changing. For example, proposals are being considered separately in Parliament for extending civil partnerships to opposite-sex couples. These proposals, which are supported by the Government, may have a profound impact on the number of people who still choose to cohabit rather than having a formal legal relationship.

On civil partnerships, I acknowledge my noble friend Lord Lexden’s tenacity in pressing for protections for siblings who live together, and the support shown to him by the noble Baroness, Lady Deech. The House will have a further opportunity to debate this matter next week when my noble friend has an Oral Question. I think that the noble Lord, Lord Marks, would not agree that protections for siblings should have a place in this Bill. This was noted by the noble Baroness, Lady Burt. While I appreciate my noble friend’s interest in inheritance, I do not see that the Bill’s other provisions, particularly on providing redress, would be suitable for siblings. Again, the range of opinions within and beyond your Lordships’ House seems to indicate that there are still questions to be resolved about the extent to which family law should apply to relationships outside marriage and civil partnership.

The Government are also concerned that the Bill’s proposals could lead to more cases coming to court, rather than providing certainty and clarity for the people it aims to protect. There is nothing to suggest that separating couples would settle financial matters amicably under these new arrangements. Indeed, it could be suggested that, given a possible lack of clarity, it would be the reverse. The Government’s view is that coming to court to resolve a dispute about a private family matter is best avoided. Indeed, one of our priorities is to help more separated couples and parents resolve matters concerning children and financial settlements on divorce out of court, provided that it is appropriate and safe to do so.

Finally, I must conclude with the Government’s position in relation to the proposals put forward in the Law Commission’s two reports on cohabitation. In broad terms, the Bill implements the recommendations in those two reports. The first, Cohabitation: The Financial Consequences of Relationship Breakdown, was published in July 2007. The recommendations in this report are to give cohabitants who have lived together for a qualifying period—it was thought that between two and five years would be appropriate—rights to obtain financial remedies from the court not provided for in the current law. Cohabitants who share a child would not be required to meet this minimum duration requirement.

The second report, Intestacy and Family Provision Claims on Death, published in December 2011, makes a number of recommendations. The Bill proposed by the noble Lord, Lord Marks, would implement those recommendations about cohabitants. The previous Government had already implemented the other recommendations in this later report through the Inheritance and Trustees’ Powers Act 2014, which came into force that year.

The overall effect of the Bill and the Law Commission’s recommendations in those two reports would be to create a substantial new scheme of legal rights and obligations for cohabiting couples. The Government would need to carefully consider the proposals put forward in the two reports before undertaking any review of this area of law. At present, our immediate priority for family law is to reduce ongoing family conflict following the irretrievable breakdown of a marriage or civil partnership. We will also be supporting the extension of civil partnerships to opposite-sex couples, and we are studying the issues around financial provision following divorce or civil partnership dissolution.

We want to make progress in the field of family law, and I know that my right honourable friend the Secretary of State for Justice and my honourable friend Lucy Frazer both listen intently to what this House has to say. I thank the noble Lord, Lord Marks, and all noble Lords for their contributions today. There are strong opinions on all sides, but all noble Lords will recognise that calls to introduce legislation in any new area must be balanced against arguments about ensuring that the individual freedoms we all take for granted are protected.