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Lord Habgood: My Lords, the noble Earl, Lord Russell, was kind enough to refer to my comments in the Second Reading debate. I speak in this matter as one of the unenlightened minority. Despite his very winning speech, I feel that there is an important distinction between marriage and cohabitation. Perhaps I did not express that extremely well when I referred to marriage as a public status. I should have said that it is a public and legal status.
Surely, the simple difference between marriage and cohabitation lies simply there; that one is a legal status and the other is not. One knows who is married; and being married carries certain rights and responsibilities. One may know who is cohabiting--I certainly grant that there are many for whom in practice cohabitation works out in the same way as marriage--but a cohabitee can equally well be somebody who has simply shacked up with somebody else for the past six months.
Unless one can draw some distinction between the permanent commitment and the kind of casual association which is sometimes what cohabitation is, then one is on a very slippery slope indeed. It seems to me that the place at which that distinction is drawn is where a relationship is legally recognised, and that is what marriage is about.
As regards the other point that the noble Earl mentioned, about invitations to parties as man and wife or a man and partner, that does not necessarily mean to say that the partner happens to be equivalent to the wife. I believe that the statistics that were brought up are totally misleading.
The Lord Chancellor: My Lords, in considering the question of what to do in relation to the powers referred to in Clause 31 of the Bill, which, as your Lordships know, is the clause which deals with a co-habitant or former co-habitant with no existing rights to occupy, it provides, and did provide when it left this House on the last occasion, that among the things which the court were to consider, in all the circumstances of the case, were the nature of the parties' relationship. I should have thought that it was quite obvious that parties who have co-habited for an extremely short time would be in rather a different position in an order under this kind of provision, from those who had been living together for, say, 20 or 30 years.
There are a number of aspects of the parties' relationship which are relevant. I would have thought, faced with this problem, that it was perfectly reasonable to bring out the fact that, among the differences in relationships, was this particular difference. In my submission to your Lordships, this is a difference that is perfectly defensible; namely, that the parties have not given each other the commitment involved in marriage. That does not mean to say that they may not have given each other some other kind of commitment, but whatever it is, however like the one in marriage, it is not actually the commitment involved in marriage. They may even decide to stick it out through thick and thin and to have the grit and determination to go on all their lives. But they have not done so in the commitment involved in marriage. That is the way I see it.
They do not take vows in public which lead to legal obligations on both of them. Even following divorce, in the married situation the parties may have financial obligations to one another. By contrast, co-habitation can involve many different degrees of commitment, and so much so that I would go so far as to say that the only thing which is certain is that it is not the same as marriage. That is why I have focused particularly on that fact. This difference is all that Clause 36 is drawing to the attention of the court.
I fully accept that a co-habitant has the same right to be protected from violence as a married person. I do not accept that Clause 36 in any way prevents that. It is right that the court should take account of all the circumstances, including whether or not the parties are married, when deciding whether an occupation order is appropriate and what its terms should be. That is not making any distinction of a class type, whether second-class or first-class or anything, but making a
This clause was put in in answer to concerns expressed to me by colleagues in another place. It is legitimate to meet their concerns in this way which in no way damages the structure of the Bill and draws out in effect a particular aspect of a relationship which, in any event, will be implied. Certainly there is nothing to suggest that we are doing other than acknowledging an existing and realistic state of affairs, leaving the court without any further direction to take such account of it as it thinks proper in all the circumstances.
Lord Irvine of Lairg: My Lords, of course there is a distinction between those who have given to each other the commitment involved in marriage and those who merely cohabit, but can the noble and learned Lord give a practical illustration of how that distinction is a relevant distinction for the purpose of the exercise by the court of its power to make an occupation order?
The Lord Chancellor: My Lords, yes. The married couple have financial obligations to one another which the unmarried do not have, and that might well be relevant. For example, if a cohabitant is thrown out of the matrimonial home, that cohabitant may have no redress whatever against the owner of the home, whereas a former spouse who is thrown out may well have a financial entitlement to, for example, a periodical allowance or something of that kind. In such circumstances, the relevance of the relationship may well be important.
Earl Russell: My Lords, it may surprise the noble Lord, Lord Habgood, that I agree with practically everything that he said. I think we all agree that we cannot extend protection except to people who have a public and legal status. If we do anything beyond that, we are doing something which is in danger of being void for its uncertainty. It is my understanding--the noble and learned Lord, Lord Simon, supported this point in Committee--that cohabitation is now a public and legal status. It was never my intention in moving this amendment to defend those who have shacked up together for a short time. That is far too vague to be proper to bring within the law.
The status of cohabitation is so well recognised in social security law (where it is part of the foundation of the basic principles of the law on the subject) that I think that it is clear enough. There are tests by which it can be recognised; such as where there are shared households and shared finances. When the noble and learned Lord said that a former cohabitant will not have any financial entitlement in the property, he is in fact mistaken. A good many cases are known to me
I say briefly to the noble Lord, Lord Clifford of Chudleigh, that the test I used in arriving at my 20 per cent. figure is the test used by Social Trends of a birth registered by both parents. I think that that is a sufficiently precise step to be taken seriously, and that the editors of Social Trends are right to rely on it.
I listened with great care to the reply of the noble and learned Lord on the Woolsack, but I simply do not understand why the difference which he rightly perceives is relevant to the force of this Bill. He talks about not making the commitment involved in marriage, but it seems that you could equally well say that I have not made the commitment involved in marriage because I did not do it in church. I respect that view, but it seems to me that for practical purposes I belong as to a married couple--and my cohabiting friends see it just the same way as I do. Those two cases are a lot more in parallel than most people have readily admitted.
The noble and learned Lord said that the cohabiting couple had the same right to protection and that he did not think that Clause 36 prevented that; but the noble and learned Lord is on a fork here: either occupation orders are part of protection or they are not. If they are, the cohabitor clearly comes off worse; if they are not, what are they doing in the Bill? I simply do not understand why this distinction is relevant to a Bill which is concerned with physical safety. I would willingly withdraw the amendment. However, one cannot move that a clause do not stand part at Third Reading. This is the last chance that I have to ask for the opinion of the House. Regretfully, I must do so.