Friday 17th July 2026
(1 week, 4 days ago)
Lords ChamberCohabitation Rights Bill [HL] 2026-27 Read Hansard Text Watch Debate
This text is a record of ministerial contributions to a debate held as part of the Cohabitation Rights Bill [HL] 2026-27 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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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.
Baroness Levitt (Lab)
My Lords, it is always a pleasure to speak after the noble Lord, Lord Wolfson. Of course I accept his apology for what was obviously a slip of the tongue. Before I turn to the points he made, which are interesting and valid as always, I start with the noble Lord, Lord Marks of Henley-on-Thames, whom I congratulate on securing a Second Reading for his Bill. I pay tribute to the noble Lord for his long-standing interest in cohabitation reform, his thoughtful and principled engagement on this important area of family law and his determination in bringing this Bill forward again. He and I spoke yesterday; I hope it was the beginning of a number of conversations on this important topic.
I want to make it absolutely clear from the outset that this Government share his view that cohabitation reform is an important and pressing issue. That is why we committed in our 2024 manifesto to strengthening the rights and protections available to women in cohabiting couples. Broadly speaking, it appears that agreement has broken out all over this House, with the exception of the noble Baroness, Lady Deech, and to some extent the noble Lords, Lord Wolfson and Lord Bailey. I will come back to them in a moment.
I begin with the case for reform. As the noble Lord, Lord Marks, said, there are currently around 3.5 million cohabiting couples—more than twice the number 30 years ago. Despite this, cohabitants have very limited financial protection when they separate or when their partner dies having not made a will. This lack of protection can leave the most vulnerable, including women, children and victim survivors of domestic abuse, exposed to significant financial hardship. It can also leave victims of domestic abuse with an impossible choice: leaving their abuser but then having no financial security at all or staying in a dangerous relationship. These problems are compounded by the fact that many people do not know they have no rights until it is too late.
The noble Lord, Lord Wolfson, agrees with the Government and the noble Lord, Lord Marks, when he says that almost half the population believe that there is such a thing as a common-law marriage—the idea that a person will accrue some kind of financial rights simply by living with a partner for a number of years or having a child together. It is a myth. It is simply untrue. Some of your Lordships, in particular the noble Baroness, Lady Deech, have raised the point that many individuals choose not to marry. That is a choice that they are entitled to make, and we respect that. But we must be careful not to assume that such choices are always made with a full understanding of the law and its consequences. Children should not be left in a vulnerable financial position as a result of the decisions made by their parents.
The noble Baroness, Lady Deech, and the noble Lord, Lord Wolfson, asked, “If they want those financial rights, why not just get married?”, but that risks overlooking the fact that many cohabitants are not aware of their financial rights, as many noble Lords have agreed. Some simply drift into having cohabited. Maybe they thought about getting married but never quite got around to it. I will return in a moment to the points made by the noble Lord, Lord Bailey, but for some getting married is too expensive and too hard to deal with. I simply disagree with the noble Baroness, Lady Deech, that more than half the population understand their rights. All the evidence suggests that public awareness campaigns do not improve this understanding at all.
We are aware that we all risk the state overstepping into what are ultimately deeply personal choices about how individuals choose to live their lives. However, concentrating on the freedom of choice aspect ignores the imbalances of power that can exist within relationships and the point that a perpetrator of abuse may refuse to marry a victim precisely to ensure that they have no rights at the end of the relationship. The noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Gohir, made an important point about religious-only marriages. I will return to that in a moment, because that is something about which the Government are really concerned and about which we intend to do something.
I recognise the concern expressed by a number of your Lordships that offering a framework of protections for cohabitants could undermine marriage. I reassure the noble and learned Baroness, Lady Butler-Sloss, that there is no evidence from other jurisdictions that have cohabitation protections that it has undermined marriage at all. The Government are proposing two very different regimes on relationship breakdown: a regime for divorce that is based on sharing, and a regime for cohabitation that is based on need.
The Government support and value marriage. I hope that your Lordships’ House will forgive me for saying that I am always pleased when I see the name of the noble Lord, Lord Bailey, on the speakers’ list of a debate in which I am taking part. He and I come from very different political parties but he always says something interesting, and I thought his speech gave us things to think about. The reason why we say that we are in favour of and support and value marriage is that yesterday we launched our consultation on reforms to weddings law. This forms part of a piece with the consultations on what happens to finances after the breakdown of relationships. We recognise that marriage can be too difficult and too expensive for many people, so we propose—but we are very interested to know everybody’s views about this—moving from a buildings-based to an officiant-based regulation system. That would, for example, permit those who conduct religious marriages to also conduct civil marriages at the same time, so that those who take part in, for example, Muslim marriages can have the protections afforded to others in that situation.
Although the Government agree with the noble Lord, Lord Marks, on the vital need for cohabitation reform, we do not believe that this Bill is the right vehicle in which to deliver it. I have four reasons for saying this. The first is our ongoing consultation. It will not have escaped your Lordships’ attention that we launched our A Fairer End to Relationships consultation last month, which sets out our approach to cohabitation reform, together with proposals to reform financial remedies on divorce. It represents one of the most significant opportunities in decades for the reform of family law. As part of the consultation, the Government are engaging with a wide range of interested parties to test our proposals and try to achieve consensus about the direction of reform. Legislating at this stage would pre-empt the outcome of that consultation.
The second reason is that the Government are not persuaded that the Bill’s proposed model for cohabitation reform meets the policy objectives set out in our consultation. Our objectives include prioritising a fair outcome for children, protecting the vulnerable, and providing a clear and accessible framework—I take on board what everybody said about lawyers; I think I had better pass on quickly—whereas the Bill proposes a compensation-based approach to cohabitation reform. In broad terms, this means giving the court power to compensate a cohabitant if they have been economically disadvantaged as a result of contributions made during the relationship. The Bill would also allow the reversal of an economic benefit gained in the relationship. This would require the courts to retrospectively assess how contributions create advantage or disadvantage. This would be complicated, it may be hard to evidence, and it would be hugely likely to increase conflict and cost. We know that very acrimonious court proceedings are bad for families and particularly bad for children.
Most importantly, the compensation model does not reliably ensure that needs, particularly the needs of children, are met. For these reasons, the Government prefer a needs-based approach to cohabitation reform which prioritises meeting the financial needs of cohabitants when they separate. For example, this would capture needs which have arisen completely independently of the relationship, such as serious illness or disability, which might not be catered for under a compensation model. Under the Bill, a cohabitee who got a serious illness—for example, ME—shortly after the relationship began and, as a result, could not “contribute” to the relationship would be left unprotected. That cannot be right.
This is particularly important in the cases of families with children, as it is children who are most often affected by the financial consequences of relationship breakdown. A needs-based approach also offers a clearer and more accessible framework, as it respects the choice of people not to marry but is also designed to look after the economically weaker parties in the relationship. I point to the fact that compensation, as a principle, is rarely used even in divorce cases, although we are consulting on whether it should have a place there. We will think about it, but at the moment our view is that the needs-based model is more likely to achieve our objectives.
I note that the Bill reflects the proposals recommended by the Law Commission, but they were made almost two decades ago and things have moved on considerably since then. In particular, there is now much greater awareness of domestic abuse, including economic abuse. It is right, therefore, that we consult on our own approach. I reassure the noble Lord, Lord Marks, that our approach would benefit not simply victim-survivors of domestic abuse but all cohabitees, once the relationship breaks down, if they are in need of economic support.
Our third reason, which I can deal with very quickly, is coherence across the system. The Government believe that cohabitation reform and the law in relation to finances on divorce should be examined together. Although we propose distinct and separate regimes, we are of the view that we should draw on the Law Commission’s 2024 scoping report on financial remedies, which raised important questions about how the law for divorcing couples could be made fairer and more certain—a topic on which the noble Baroness, Lady Deech, has spoken often. I have listened to everything she has had to say, together with the contributions of the noble and learned Baroness, Lady Butler-Sloss, on this topic, with great interest.
Our consultation therefore makes proposals aimed at improving the system for divorcing couples who go through financial remedies proceedings. By contrast, the Bill would deal with cohabitation reform in isolation. In our view, that risks missing a wider opportunity. What we want is a coherent, consistent and modern family justice system for married couples who divorce and for cohabitants, whether on separation or on death. We want a system which respects freedom of choice in how families arrange their lives while protecting the vulnerable. That is why we are consulting on all these three areas of reform together.
Finally, the Government have concerns about the Bill’s approach towards intestacy and inheritance claims, because the Bill’s proposed definition of “cohabitant” and its qualifying criteria would create a broader entitlement to intestacy rights than the Government are currently considering.
I hope I have made it clear that the Government are committed to cohabitation reform. We have already begun that work and have committed to legislating when parliamentary time allows, having considered the results of the consultation. Our consultation sets out a clear framework for cohabitation reform that will meet the needs of women, children and those otherwise vulnerable.
Although the Government cannot support the Bill from the noble Lord, Lord Marks, for the reasons I have given, I hope he will be reassured by the Government’s clear commitment to reform in this area. We share his objective. He and I have talked over many months about various Bills that have come before the House and about other topics. I profoundly hope that we will continue to do so. We want to deliver vital financial protections for cohabitants, so any difference between us is not about whether reform is needed but simply about how best to achieve it. I therefore respectfully invite all noble Lords to engage with the consultation and to give us their views. We want to get this right and we want to do it in a way that is fair, workable and lasting.