Cohabitation Rights Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Baroness Deech

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

[Lord Marks of Henley-on-Thames]

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]

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]

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.