Inheritance (Cohabitants) Bill [HL]

Lord Browne of Belmont Excerpts

Friday 19th October 2012 Lords Chamber

[Lord Browne of Belmont]

My Lords, while I recognise that the Bill is motivated by the best of intentions to ensure that injustices do not occur with respect to cohabitation and intestacy, I believe that its net contribution would be negative. There has been far too much legislation in recent years, and the Bill will add to the complexity of family law without increasing its fairness.

The underlying premise of the noble Lord’s Bill seems to be that because the automatically available protections for the surviving partner, with respect to the estate of the deceased partner, are so limited, the law surrounding cohabitation should be changed. That ignores two facts. First, if a couple want to access protections, they have the option of marriage. Secondly, if they do not wish to marry but to avail themselves of protections, they can. The primary available remedy to them is found in the writing of a will, providing for what will happen on death and avoiding either intestacy or diminishing disputed claims by family relatives against the surviving cohabitant. Other available remedies include letters of wishes, nominations and assignments of pension and life policies, a simple deed of trust, a cohabitation contract and powers of attorney.

I am aware that some may respond, “Yes, that is true but we still need to change the law because so many couples do not avail themselves of these protections”. I struggle with that argument, which seems to me profoundly illiberal. Changing the law so that cohabitees who have been together for more than two years and have children, and cohabitees who have been together for more than five years and do not have children, become effectively, in some real sense, married seems profoundly anti-choice. It offends the choice of those who wish to cohabit but not marry and have not chosen to avail themselves of any of the additional protective mechanisms that are available to them in law. It also offends the choice of those who are prepared to make the very significant—but very worth while, I might add—sacrifice that marriage involves. When a couple marry, they make a public “Till death us do part” commitment that is recognised in law and so it consequently seems logical that the level of protection surrounding their relationship should be more robust than that for those who have not made that commitment.

The truth is that we live in a culture that is increasingly nervous about commitment. If people can get automatic protections without anything remotely resembling the level of the marriage commitment, the rationale for marriage is eroded to some not insignificant degree. The truth is that society badly needs conscious, explicit and deliberate public commitment. We should be encouraging commitment, not creating a new legal framework that makes it less necessary. That is why the Prime Minister is exactly right to seek to encourage commitment by promoting the policy of recognising marriage in the tax system.

That point is very relevant to today’s debate. As the Secretary of State for Work and Pensions pointed out in February 2011, it is particularly striking that, despite the current fear of commitment, 90% of young people still aspire to marry. Why then do they not? It seems very likely that it is partly because the operational public policy context is such that it makes marriage too difficult.

The truth is that for the year 2010, the tax burden in the UK on a one-earner married couple with two children on average wage was a staggering 52% greater than the OECD average. Of particular interest to me is the fact that the tax burden on such a family as a proportion of that placed on a single person on the same wage was 74.5%, while the OECD average was just 51.4%. That differential highlights the extraordinary fiscal individualism of our tax and benefit arrangements compared with other developed countries—the vast majority of which recognise marriage in the tax system—which makes commitment so much harder here than elsewhere.

Those findings are hugely important, because the social science evidence is so clear that marriage is beneficial for society, helping both adult and child well-being. In particular, marriage is a far more stable environment than cohabitation. That is crucial for children, whose development is much stronger, on average, in a stable two-parent rather than a one-parent family. Moreover, as the Minister, the noble Lord, Lord Hill, pointed out in your Lordships’ House on 10 February 2011 at col. 389, this benefit is not actually a function of standard of living. The poorest 20% of married couples are more stable than all but the richest 20% of cohabiting couples.

Mindful of those considerations, it seems to me that rather than striving to make the option of cohabitating, commitment-light relationship easier, we should prioritise making the expression of the public, lifelong, “Till death us do part” commitment that is marriage no more difficult in the UK than in comparable developed countries.

Finally, although current law is in some cases unsatisfactory, rather than introduce a dramatic change in the law, especially equivalence to marriage, it would be better to acquaint and educate cohabitants with their lack of legal protection and make them aware of the existing remedies available.