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1.17 pm

Baroness Butler-Sloss: My Lords, I think the answer to the first question of the noble and right reverend Lord, Lord Harries of Pentregarth, is that if the Bill is passed, it will give rights to people who would not otherwise have them. Whether it creates a new class is something that I will leave to the Bill’s author, the noble Lord, Lord Lester of Herne Hill.

Lord Lester of Herne Hill: My Lords, I shall deal with that point now. Clause 2(1) makes clear that cohabitation is defined only:

“For the purposes of this Act”.

Therefore, the noble and right reverend Lord, Lord Harries, is perfectly right: this is not creating a new recognised relationship, but is laying down criteria for the courts to be able to apply, especially as regards financial provision.

Baroness Butler-Sloss: My Lords, I am a convert to the importance of regulating some aspects of cohabitation. Therefore, I support the Bill in principle. I assume that it relates to those who wish to have a sexual relationship by way of cohabitation. That is clear from the fact that one aspect of it clearly deals with such couples having children.

I very much support marriage. I have been married for longer than the noble Lord, Lord Lester—some 50 years with a very long-suffering husband. I agree with a great deal of what the right reverend Prelate and the noble and right reverend Lord, Lord Harries, said. I do not believe that marriage will suffer as a result of the Bill. I did once, and I own up to being wrong. I entirely agree with all the reasons that the noble and right reverend Lord gave, which he set out very clearly, although I have not done the same degree of work on the measure. As the noble Lord, Lord Lester, said, the experience of other countries is that marriage has not been affected by such a measure. If it had, I would be unhappy to support the Bill. However, we need to remember that marriage, according to the statistics, thank goodness, is more stable and longer

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lasting, and provides something which, as the noble and right reverend Lord said, those of us who are married are glad we are part of.

I profoundly disagree with the noble Baroness, Lady Deech. She is unjust to the lawyers who support this Bill. It is important to remember that not only did the Law Commission propose a somewhat similar Bill, but the Family Law Bar Association, Resolution—formerly the Solicitors’ Family Law Association—and the Law Society supported it. They are not supporting the Bill only to get more shekels in their pockets. I declare an interest as, and am proud to be, an honorary member of Resolution. It has many lawyers dedicated to looking after unhappy couples after their relationship has broken down. They have a superb protocol that puts the welfare of children first when parties’ relationships break down, and their duty is to give unpalatable advice to their clients if the breakdown is not in the interests of their children. I do not believe that the support given by the FLBA, Resolution and the Law Society is based on money grabbing.

Of course there are lawyers who make a great deal of money out of divorce, but one aspect of the Bill is that it uses the phrase “reasonable needs”, which went out some years ago as regards marriage, divorce and post-divorce settlements. Footballers’ wives get large sums of money, because there is no restriction on what can be granted in the discretion of the judge. However, the discretion of the judge under this Bill would be limited to what used to be called “reasonable needs” and for a limited period.

Another reason why I profoundly disagree with the noble Baroness, Lady Deech, is that I think she does not recognise the very real problems on the ground. Lawyers recognise them, and I hope noble Lords will forgive me for saying something as a former family judge for 35 years about my experience in trying cases. There are two sorts of women who do not necessarily know their rights or understand what they are letting themselves in for. One sort is educated and does not have the knowledge, but there are a large number of relatively uneducated women; I am not being patronising or condescending in recognising that they need help. There is a very real problem, and I have met it in the cases that I have tried. There is an unsatisfactory and unfair situation for women and children, and occasionally perhaps for disabled men, and there are vulnerable groups whose needs and human rights are not being met by the present state of the law.

My experience is very similar to the Burns case referred to by the noble Lord, Lord Lester of Herne Hill. I have dealt with similar cases again and again. I should tell you what happens. A couple live together for, say, 17 years—as I remember in a particular case—and the woman subordinates her career to the man. She takes some part-time work, she brings up their children and they live as if they are married, but they do not get married. At the end of 17 years the man finds a younger woman and walks out—except he does not just walk out, he tells her to get out. When she says, “But I have a share of the house”, he says, “The house is in my name. You have not put any money into it. You are out and I will pay something for the children”. He may or may not do that, but he does not pay a

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penny for the roof over her head. She becomes a burden on the state. Someone has to house her, because she is a priority housing case; if he does not pay, her children are in the position of children of married couples whose fathers do not pay, but she has no rights.

There is obscure and very complicated property law of the constructive and resulting trusts. As a non-Chancery lawyer, I have fought my way time and again through these resulting and/or constructive trusts to try to find whether a particular woman had put in sufficient money, or there was sufficient agreement between them, so I could make findings of fact that there were agreements that met up to a trust which included her having a share of the house. In 95 per cent of cases, I failed. I am astonished at my noble friend Lady Deech saying what she said, as she is a very distinguished academic lawyer, but she has not had these cases on the ground, as I have. She has underestimated or overlooked the state of property law in relation to people, mainly women, who do not have an interest in a house. That is the major point that the Bill is attacking. It is to be congratulated on attacking it, and that is the point that the Law Commission put forward.

The Church of England paper, which I read with interest, states that this would be more expensive on legal aid. It is not a point that has been taken, except by my noble friend Lady Deech. The present law, where women try to have an interest in a house, has cases that are long and complicated and that need judges who understand the law, and they cost a great deal of money. The Bill would very much simplify the situation. The cases would be quicker and cheaper for the state as well as the individual and, almost certainly in many cases, they would have to be settled.

The most important point is that the children of the couple who do not marry but live together for a number of years would be protected by the Bill in a way in which they are not protected now. If the primary carer is, as in most cases, the woman—most men expect the woman to be the primary carer—that woman will have no recourse to accommodation and she may end up, as we know perfectly well, despite being priority housing, in bed and breakfast accommodation with relatively young children who are very difficult to manage.

Baroness Deech: My Lords, I crave your Lordships’ indulgence in raising one point. I referred to Schedule 1 to the Children Act, which gives property and other financial possibilities to women in that situation. I referred to constructive trusts, the arguments about which in fact have been very generous towards women in the most recent cases. I do not want to bore noble Lords with arguments about recent cases.

Baroness Butler-Sloss: My Lords, I accept that; I have gone slightly too far. My noble friend Lady Deech is entirely right that there are provisions, but they are nothing like as satisfactory as those that would be provided by a simplification and clarification of the law by an extension of jurisdiction to such mothers and, occasionally, fathers.

I have reservations about certain clauses. I listened with particular interest to the right reverend Prelate, and I agreed with much of what he said. However, the Church of England’s approach is unworkable and

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unrealistic. The approach of the right reverend Prelate is one that I very much prefer. Those reservations include whether two years where a couple have children is right, and whether it should not be two years at least for everyone. Some of the valid criticisms made by my noble friend Lady Deech could be met by other amendments to the Bill.

I congratulate the noble Lord on introducing and pursuing the Bill; it is admirable that he has done so. It is important that this House should consider the Bill, and I very much support it in principle.

1.29 pm

Baroness Afshar: My Lords, I thank the noble Lord, Lord Lester, for introducing this Bill. I speak as a Muslim woman and declare an interest as the chair of the Muslim Women’s Network. However, here I speak in an entirely personal capacity as someone who, through training and culture, has never cohabited and who, some 30 years ago, had the good fortune to find the only man in the world who could survive being married, and staying married, to me.

I feel that Muslim women—in particular, in this country and particularly those who are in a polygamous marriage—suffer enormously because they have no protection. In this respect, I agree with the noble Baroness, Lady Deech, that they should make a contract and that they should choose to be married. As a matter of fact, in both cases they do. In Islam, marriage is a matter of contract in which women are paid—they are entitled to payment for consenting to the marriage. I am sorry, but I find that in no way unromantic. I always thought it was essential that someone realised that I was worth a great deal and agreed to pay. Women also have the right to maintenance, to wages for housework and to payment for suckling their babies. Therefore, in that sense, all women in formal marriages who choose to work within the household are recognised as a matter of course as being in paid employment.

However, we have an enormous problem in that those rights are not necessarily transferable across borders or nations or, unfortunately in this country, across cultures. That is the real problem for Muslim women. If their marriage is registered—it is compulsory in Iran to register all formal marriages—that registration remains, for example, in Pakistan but is not transferred to the UK when they arrive as someone’s bride. They assume that they have a range of entitlements but their husbands may suddenly decide to bring in another woman. In the case of the marital contract in Iran, women are required to give their consent to a second marriage, and they can decide where they live and so on. However, none of these rights is transferred when they come to this country, and therefore any Muslim woman is at any point vulnerable to finding a second woman brought in, willy-nilly, by her husband, who does not register the second marriage either and can bring in a third and a fourth wife.

There is much discussion among Muslims across the world as to whether men have a Koranic right to marry even a second wife. As I said, in Iran it is accepted that the only way that a second wife can be admitted to a household is with the legal written consent of the wife. However, in this country, the absence of registration and of recognition of the

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legally agreed entitlement of married Muslim women means that some women are more married than others. You can have women who are recognised, registered and entitled to a pension, inheritance, a house and so on, and in the same household there may be women with no rights whatever. Furthermore, under a Muslim contract, at the point of marriage a woman can decide whether she is going to share in the wealth of her husband and, even more importantly, whether her husband has any right to her wealth. One problem experienced by professional Muslim women who are married in this country informally is that their husbands may well claim their rights, particularly if these women are not familiar with the laws of the land or the language when they come in and the husband registers what they bring in as his wealth. It is very difficult to protect women who, in good faith, have entered into a contract that is supposed to give them security and protection but, when they arrive here, they become dispossessed citizens.

Also problematic is the fact that, as their marriages are not registered, they have nothing to work with in their own defence. Of course, there is an extensive group of women who work within communities in this country who are trying very hard to ensure that the women who come in without any kind of protection have some support. In the Muslim community it is difficult to go against kinship norms and survive. We are raised to depend on our families and to protect our families and we are raised not to speak against them. To start a campaign to protect second and third wives, who are enclosed in families who do not respect their rights, is not easy.

It is certainly not easy to register their children. In one household, you can have children who are legally recognised as the children of the husband and in the same household you can have children from the same man who have no rights to inheritance, no entitlement and are not recognised as legitimate children of the household, even though the wife, in good faith, assumes she is the wife of the man. That inequality should not be tolerated. I very much wish that we could insist on the registration of all marriages. At least, that would deal with the free choice that those women have made. To me, it is unacceptable that citizens born in this country are not recognised as the lawful children of their fathers, when their mothers had assumed, in good faith, that they would be. I very much hope that the Bill will be recognised.

1.37 pm

Baroness Thomas of Walliswood: My Lords, this has been a very interesting, if not over long, debate. I thank the two right reverend Prelates—one still active and one retired—and the noble and learned Baroness, Lady Butler Sloss, for their extremely gentle perception of this Bill. Very acute observations were made by all three of them about the details of the Bill, but one felt the fundamental goodwill behind what they said. I am very pleased, on the behalf of my noble friend in view of the amount of work he has done, that they were able to show their very learned support.

My noble friend has already described, with his usual expertise, the purpose of his Bill and the range of its provisions. I will not attempt to follow him down

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that route. However, I turn to the justification for the Bill, based on the work of researchers, the development of public opinion and the clear disadvantages of the lack of legal framework for the dissolution of such arrangements. I urge the Government to take this matter seriously. In my opinion, the best outcome would be for the Government to take over the Bill, albeit possibly in an amended form—I am not sufficient legally qualified to judge that—and promote it as their own Bill. We are all becoming very conscious of time in Parliament at the moment, and I hope that the Government will have enough time to do that.

Whether we like it or not, and quite a lot of people do not like it, cohabitation is an increasingly common form of family life, not just in the UK but generally in the western world. Although marriage is still the most common form of family, the number of people marrying is in decline. The noble Baroness, Lady Turner, expressed that view with great clarity. A quarter of all children are born to cohabiting couples, and the majority of people in such couples, together with the public in general, think that they have the same rights as married couples. Yet the current absence of a framework for dealing with the breakdown of cohabiting couples can disadvantage both the children of such a relationship and the financially weaker of the two partners. This is the wrong that my noble friend’s Bill is designed to right.

Not everyone approaches this matter in the same way. A friend of mine in this House maintains that it costs so little to acquire the benefits of marriage by visiting the registry office that people should avail themselves of this facility instead of setting up less satisfactory arrangements. Many people might say the same, but the law has to change with the choices that people make, and people are choosing not to marry, although it is perfectly true, as several noble Lords have pointed out, that people may choose not to marry at the beginning of a relationship but marry later on. That is a different situation.

Cohabitation is widely accepted as an acceptable way of creating a family, but that family is more vulnerable if it breaks up than other forms of family are. People who live together rather than get married may not even make wills, and if one partner has less financial clout than the other, perhaps because of being the caring parent, that person has no redress when the partnership breaks down.

Public opinion also seems to be on the side of change. The 2008 British social attitudes survey found, among other things, that two-thirds of respondents thought that when a couple had been living together for as little as two years, and there is a child of that relationship, the man should pay child support to the woman who will be their child’s chief carer. The poll also showed that the same proportion thought that a childless co-habitant should inherit the home bought by their deceased partner before their relationship began as though they were a married couple. Public opinion seems to support the rights of co-habiting couples almost as though their partnership has the same importance as marriage.

Finally, the legal professionals in what used to be known as the Solicitors Family Law Association also

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support the purposes of the Bill—in fact, they have played a very large part in creating it—including its provisions on separation or the death of a partner, because they feel that co-habiting couples should be able to separate in a sensible way that assists them to end their association without damaging the partners’ future. As my noble friend has explained, however, the Bill’s provisions for cohabiting couples are not the same as those for married couples who divorce. The presumption is that the couple will be financially self-supporting as soon as possible, and that claims on assets will be limited to reasonable needs. The well-being of any children of the partnership will come first. That is an extremely important provision for me, as it is, I think, for all of us.

The case for the Government taking on the Bill is considerable. Many people enter into partnership arrangements without advice on what the legal aspects of such a relationship really are. Damage to children or to the economically weaker partner can ensue, and a method of redressing this disadvantage is needed. On the other hand, nothing in my noble friend’s Bill gives cohabiting couples the same rights as married couples. The Bill provides the possibility of making fair provisions in the case of the breakdown of partnerships, which is very much welcomed and supported by the very lawyers who deal with these cases and understand them the best.

1.45 pm

Lord Henley: My Lords, the noble Lord, Lord Lester of Herne Hill, will not be surprised to hear me say that I will not be able to offer him much support, but he is probably used to that by now. I am not sure that I have been able to support him on many of his Bills in the past. Having said that, I am grateful for his detailed exposition of what Resolution—formerly known as the Solicitors’ Family Law Association, as the noble Baroness, Lady Deech, told us—and the noble Lord’s own Odysseus Trust have put together in forming this Bill. I was interested in the name of the trust. It brought to mind Tennyson, and the noble Lord will remember his poem entitled “Ulysses”, in which Odysseus reflects on old age:

“It little profits an idle king,

By this still hearth, among these barren crags,Match’d with an aged wife, I mete and doleUnequal laws unto a savage race,That hoard, and sleep, and feed, and know not me”.

Perhaps this is another example of the unequal laws that the noble Lord wishes to force on to the savage race which, I suppose, includes the likes of me.

I want to explain briefly why I and, I suspect, most of my noble friends cannot support this Bill. First, as the noble Baroness, Lady Deech, made absolutely clear, it removes choice from individuals. I accept, as the noble Lord made clear in his introduction, that there is an opt-out, but it is one that the parties have to find rather than having a new status, as the noble Baroness, Lady Deech, put it, imposed on them. I also fully accept her human rights point that it is possibly a breach of human rights to be put into a position one does not wish to be put into, purely because a certain time has passed or other events have taken place. In my view, it is far better that people make the conscious

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decision to enter into such arrangement themselves, just as with marriage, rather than drifting into them purely by the passage of time or, as I have put it, other events.

The noble Lord and others touched on the point about ignorance of the law, and how so many believe that there is some such thing as a common-law marriage and that they are protected. In the criminal law, ignorance is no defence. I appreciate that it is jolly difficult to know the criminal law now because the Government pass so many new criminal justice Acts. Even so, as the noble and learned Baroness the Attorney-General will assure us, lack of knowledge of changes in the law is still no defence, and the same should apply to the status of marriage, partnerships or whatever.

I think that my second point is important. I believe that the Bill would undermine the institution of marriage, at a time when we should all be doing our utmost to support it. We have seen the statistics on many occasions showing the far better outcomes for all children when their parents live in a stable relationship and, as we all know, that stable relationship is much more likely to be marriage than some partnership of whatever form. I would like to see the Government do everything they can to support the institution of marriage. I quote Jill Kirby at the Centre for Policy Studies, when she criticised the plans as introducing a,

“kind of marriage lite. If a man and a woman want to create a family together, then the most durable contract available to them is marriage. If they decide not to marry, then I think consequences must flow from that, and that if we introduce ... a kind of substitute version, as the Law Commission proposes”—

she was talking about the proposals from the Law Commission rather than that of the noble Lord—

“then it does detract from that institution and I think will lead to more confusion”.

Thirdly, if we are to have a Bill of the sort the noble Lord is talking about, it would fail to deal with other cohabitees who have similar rights. We had this argument in the then Civil Partnership Bill when it passed through the House, and I assure the noble Lord that if he pursues this proposal he will hear the arguments again. It does not deal with a carer looking after an aged parent when that aged parent dies. It does not deal with two sisters who inhabit the same house, and then one dies and the other finds that inheritance tax forces her to sell up and make other arrangements for the rest of her life. However, as I understand it, the Bill gives some inheritance tax protection to people who have been forced into a cohabitation pact, or whatever it might be.

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