Previous Section Back to Table of Contents Lords Hansard Home Page

Fourthly, and I say this with some trepidation in the presence of the noble and learned Baroness, Lady Butler-Sloss, it creates work for lawyers. We should always remember that Adam Smith said that when two or three people of any profession get together, one can be fairly sure that there will be a conspiracy against the public. On this occasion, we have had some 5,000 members of Resolution, formerly known as the Solicitors’ Family Law Association, getting together. There is ample evidence that there will be extra work for lawyers. We only have to see that to opt out of entering into some partnership, both parties have to

13 Mar 2009 : Column 1436

take expert legal advice. That is not a cheap option for those parties, wise though it might be, and we can be fairly sure that later on, when these arrangements split up, there will be further calls on the public purse.

My fifth point is to ask the noble and learned Baroness the Attorney-General what estimates the Government have made—if they have made any, because I imagine they do not want to support the Bill—about the costs to the Legal Aid Fund. We all know the pressure it is under at present. What further pressure do the Government feel is likely to be put on it by a Bill of this sort?

Lord Lester of Herne Hill:My Lords, before the noble Lord comes to his final point, can he say, on behalf of the Opposition, whether they recognise that there is a serious social problem that needs to be addressed? So far, I have not heard any recognition in what he has said.

Lord Henley: My Lords, the noble Lord will be aware that, as always with Private Members’ Bills, I am speaking for myself, although I indicated that I expected that most members of my party would support the line I was taking. I accept that there are problems. The point I am making, and other noble Lords have made it, is that what is proposed does not solve those problems and, in fact, makes certain things worse, particularly as it undermines the status of marriage. I think that undermining the status of marriage is worse that what the noble Lord is trying to do.

My sixth point is about child support, which must be the most important part of any break-up between two people who are not married. As we know, arrangements can be brought into effect for absent fathers—that is normally the case—to support their children when relationships break up and they are no longer living together. I remember being involved with my noble and learned friend Lord Mackay of Clashfern in the introduction of the first Child Support Bill some 20 years ago, or perhaps a bit less. As we know, not all that legislation is working as well as it ought to. Further attempts at reform have been made over the years, and the Government have also attempted to reform it. I think the Government, rather than going down the route of offering support to the noble Lord’s Bill, would be better advised to pursue further attempts at ensuring that what we will simply refer to as absent fathers—they are not necessarily always absent fathers—do their bit to support children. Therefore, as I said at the beginning, I regret to say that I cannot offer any support to the noble Lord.

1.54 pm

The Attorney-General (Baroness Scotland of Asthal): My Lords, on behalf of Her Majesty’s Government, I thank the noble Lord, Lord Lester, for the considerable work that he has expended on the Cohabitation Bill, and for introducing it to this House, giving rise to what has been a fascinating Second Reading debate about its terms.

I also commend the intention behind the Bill, which I understand, which is to provide financial support to couples who live together, when their relationship comes to an end. As the noble Lord knows only too well, the Government have had this issue in our sights

13 Mar 2009 : Column 1437

for some time. Noble Lords will remember that we identified it as an issue that needed to be addressed and asked the Law Commission to look at it very seriously. I acknowledge that the noble Lord made that plain in his remarks. I am therefore by no means surprised by the support of my noble friend Lady Turner for the Bill.

It may be helpful if I clarify some of the legal issues of note before I go on to explain to the noble Lord, Lord Lester, why, I regret, I am unable to support the Bill. First, on what the noble Lord said about void and voidable marriages, he will know that if a marriage is void—that is, within prohibited kinship or through failure to comply with the Marriage Acts—financial relief can be given. Where people undergo a purely religious marriage, it is invalid if it does not comply with the Marriage Acts and is not registered, as was referred to by the noble Baroness, Lady Afshar, although it is not quite as she described. Marriages contracted in countries where polygamous marriages are valid are recognised, but polygamous marriages contracted in England and Wales, where polygamy is not recognised, are invalid.

I reassure the House that the Children Act has made significant improvements in our ability to give support and make financial arrangements for children. Indeed, we have virtually eradicated the adverse impact of illegitimacy in relation to maintenance and inheritance by a plethora of proceedings that I will not burden the House with now. We have substantial protection for children.

I do not detract in any way from those who rightly described some of the real difficulties that women who are not aware of the real consequences of not marrying face when they discover them. However, it is important for us to look a little at the history of what we have done to try to address that issue.

Your Lordships will know that in 2006, the Department for Constitutional Affairs, as it then was, commissioned research that suggested that some people argued for legal reform in the areas of rights to property and other assets, recognition of non-financial contributions and parental responsibility. The research showed that views about whether cohabitants should have the same or similar rights as married couples were very diverse. The diversity of view was clearly exemplified by the noble Lord, Lord Lester, in his excellent speech setting out why he wants the Bill, and the impassioned and erudite riposte by the noble Baroness, Lady Deech, giving all the reasons why she thinks we should not have such a Bill, supported by the noble Lord, Lord Henley.

The research suggested raising awareness about the legal position of cohabitants and wider use of cohabitation agreements, or other ways of formalising arrangements, as additions or alternatives to legal reform. Your Lordships will know that we are considering how we should respond. The Government have asked the Law Commission to look at the whole question of matrimonial property agreements, including prenuptial agreements and agreements made after marriage.

In addition, as has already been referred to, in 2005 the Ministry of Justice, as it now is, asked the Law Commission to consider further the legal position of

13 Mar 2009 : Column 1438

cohabitants when their partnership ended. Its report, Cohabitation: The Financial Consequences of Relationship Breakdown, was published in July 2007 and recommended a new scheme entirely distinct from that which applies between spouses on divorce. The scheme aims to provide a sound basis on which to address any hardship and other economic unfairness that may arise when a cohabiting relationship ends. The comments made by the right reverend Prelate the Bishop of Winchester rightly concentrated on hardship and disadvantage. The noble and right reverend Lord, Lord Harries of Pentregarth, interestingly introduced the idea of manifest and substantial injustice as a criterion on which financial relief should be based. That very much goes to support the Law Commission’s approach of directing attention to the mischief that so many of us have wished to address.

The Law Commission did not believe that all cohabitants should be able to obtain financial relief in the event of separation. Instead it recommended that a remedy should be available only where the couple satisfied certain eligibility requirements and had not agreed to disapply the scheme and the applicant had made qualifying contributions to the relationship giving rise to certain enduring consequences at the point of separation. Noble Lords will know that provisions for cohabitants to receive financial provision when relationships break down were introduced in Scotland in 2006. This protection is very different from that given to married couples. It is based on the concept of compensation for losses incurred, and the share of gains accrued, as a result of the cohabitation together. This Government would like an opportunity to assess how the Scottish provisions operate in practice before considering what might be the best approach for England and Wales, which is a much larger jurisdiction. I heard what the noble Lord said about it not materially impacting on marriage and there being very few cases so far. We understand that the Scottish Executive have not yet set a timetable for the evaluation of their legal provisions for cohabitants but that they do intend to evaluate them.

We feel that the Bill introduced by the noble Lord, Lord Lester, goes further than the Law Commission’s proposals. The Law Commission’s report looked at addressing hardship, but the Bill is about dividing assets in a manner that is akin, but not identical, to the Matrimonial Causes Act 1973. It is fair to say that we have concerns about the Bill’s provisions. We believe that to support it would be to take a wrong approach towards addressing the mistaken perception that cohabitation confers a quasi-marital legal status. Although we entirely accept that that is not the intention of the noble Lord, Lord Lester, the provisions will be likely to result in costly and complex legislation, and that is not sustainable. The impact and the numbers affected would be significant. According to the 2001 census, the number of couples living together exceeded 2 million, and analysis suggests that cohabiting couples are more likely to separate than married couples. We believe that the approach adopted in the Bill would be likely to generate litigation on a large scale, with a vastly increased burden on individuals, the legal aid fund, the courts and judicial resources.

13 Mar 2009 : Column 1439

We are also, importantly, dealing with the question of an individual’s freedom of choice, though I would perhaps not describe it quite as the noble Baroness, Lady Deech, did, as a “corner of freedom”. In the Government’s view, cohabitants should have a choice about when to change their legal status in relation to another adult. Any alteration of that legal status should not be dependent on the taking of limited legal advice, with that advice itself being subject to change over time. However, I do not suggest for a moment that those putting forward these provisions do so on the basis of wishing to make more money for lawyers. I declare an interest as a family lawyer who has been a member of the Family Law Bar Association. As someone who has worked closely with solicitors from a similar discipline I can say that the intent of family lawyers is to try to assist families and children to resolve their issues smoothly and in a way which is beneficial to the parties and not to their own pockets. So I cannot agree that that was the intent behind the provisions. None the less, they would be costly.

Young people often enter into relationships that they do not intend will end in marriage. As other noble Lords have said, these are often transient relationships that a person may repeat two or three times before choosing someone whom they wish to make their lifelong partner and/or marry. We believe that a better approach would be to seek to correct the mistaken perception rather than to change the law to match the mistake. The Bill builds-in the involvement of lawyers in a way that we do not believe is appropriate. It would create incentives for going to court and fuel the litigation culture, and that runs counter to the Government’s view that only those cases that require judicial intervention should come into the justice system. Instead, as has already been said, there should be an encouragement of mediation and alternative dispute resolution to settle these conflicts in both family and civil matters. Indeed, further to the various government initiatives to help families resolve parental disputes when they have turned to the courts for help in deciding who a child should live with and see, some 40 per cent of the orders—28,000 in 2008-09—are made by consent. We believe that sufficient provision for financial and property protection is already available to couples who live together, with the principal barriers being ignorance and, sometimes, regrettably, inertia.

I am sure that your Lordships will also appreciate that in addition to those concerns, in practical terms, we already have a very full and challenging legislative timetable. Of course I hear the plea, “Could we not squeeze just one more little thing in?”. I am grateful that I am not the business manager and do not have that burden placed on my shoulders. However, I do think that it would be a bit of a challenge.

Although more needs to be done, we are already doing as much as we can to address conflict within families, stabilise relationships and reduce the trauma to children. I would not say that our work is finished, but the provisions in the Bill are somewhat at odds with the work we are doing with families and vulnerable groups to protect them better and help them to build stable family lives. We are spending significant sums focusing on the National Offender Management Service, which delivers a broad range of interventions to address

13 Mar 2009 : Column 1440

particular risks. I say that because we are concentrating on parenting and relationship skills, and spending appropriately on training, education, work and matters of that sort.

In addition to the initiatives we started, in January 2005 the Government published Parental Separation: Children’s Needs and Parent’s Responsibilities—Next Step, which sets out our plans to deliver a range of measures designed to help separating parents in dispute to decide who a child should live with and see and to reach agreement about future parenting arrangements. Research has shown that when separation goes badly, in particular where children are drawn into parental conflict, the effects can be very damaging regardless of whether the parents are married.

The cross-government work has delivered improvements in the information available to parents and a greater use of alternative dispute resolution mechanisms, such as mediation and conciliation at the start of court proceedings delivered by the Children and Family Court Advisory Support Service. We continue to promote these methods as a better way of reaching agreement than through contested court hearings. We have issued self-help guides such as Putting Children First: Parenting Plans, a guide to separating parents to help them work out the best possible arrangements for their children by showing them the various arrangements that have worked well for different families in different circumstances. The guides have an average distribution of 4,800 per month and should be available in solicitors’ offices, court waiting rooms and GP surgeries. It is by linking these initiatives that we can consider further how to raise awareness about the needs and rights of cohabitants, instead of complex and expensive legislation.

Further work is being carried out by the Department for Children, Schools and Families, which is now leading on work to improve services for separating parents. Last December a package of support for adults and children experiencing family breakdown, or at greatest risk of experiencing it, was announced. That included local pilots to test the provision of better co-ordinated local support for separating and separated parents.

Separating parents have a number of practical and emotional issues to resolve following separation, which include child maintenance, child contact, benefits, tax credits, and legal, housing and work matters. For many, the emotional and practical issues are inextricably linked. Many families need either access to counselling and mediation services or practical and legal support, delivered in a way that really makes a difference.

The noble Lord’s Bill deals with a number of important issues, and I hope that from what I have said your Lordships will accept that our priority is to help individuals who are in exactly the situation that has been described in this debate. From the provisions your Lordships will know that, in areas such as bereavement and registration of death, we accept that there is a case for some reform in the interests of fairness. Action is already proposed, for example, to amend the Fatal Accidents Act 1976 and the Coroners and Justice Bill, currently in the other place, which the Bill would duplicate.

13 Mar 2009 : Column 1441

The principal element of the Bill is, in effect, provision for the equivalent of the division of property on divorce or dissolution of civil partnership to be available for former cohabitants, provided that they apply within two years of the end of their relationship. I hear what the noble Lord says: that structure could be changed, the timing could be looked at and the nature of the criterion could be looked at. We fear, however, that the proposals, including the opt-out, are complex. There are real issues about when legal advice was taken, as people could subsequently seek to suggest that, with the effluxion of time, the conditions had changed since the agreement was made, and so on. Those complexities are very real.

The insurance has been referred to. It is already possible for people to assign insurance policies to named individuals. The Law Commission and the Scottish Law Commission issued a joint consultation paper on insurable rights in January 2008. The response was published in May 2008, and they will be publishing an impact statement with a final report and draft Bill on consumer insurance in the future.

With regard to wills, noble Lords will know that provisions can be made where there is a will; where there is none, we already have provisions that apply if the couple is living together at the time of the death. Bereavement damages, as I have mentioned, can be provided for.

On the registration of death, the Government have included provisions that would deal with that matter in the Coroners and Justice Bill, which received its Second Reading on 26 January this year. We now have a plethora of advice provision regarding this issue. The Government fund the Advicenow website with the Advice Services Alliance, and we have had over 1 million visits to that site. We work in partnership with Amazon and ASA. The media campaign LivingTogether is now in its fourth year. A study by Professor Anne Barlow has assessed that campaign, and she says that it is very positive. We also have the One Plus One website. We are looking at new ways in which we can raise awareness with activities in schools. There are also better links across government for providing advice, with the DWP supplying pension advice and the Land Registry advice when couples buy property. There is the potential for doing more, including a one-stop shop.

I therefore understand entirely the thrust of, and purpose behind, the noble Lord’s Bill. I also understand the opposition to it of the noble Lord, Lord Henley. I understand, too, the plea made in support of it by the Liberal Democrat Benches. I assure the House that we will continue to look at this matter—the Government have not resiled from it—but we do not think that this Bill is necessarily the right vehicle to bring home the strong desire of the noble Lord, Lord Lester, to provide help in respect of the aberrant effects that sometimes befall those who have previously cohabited. However, I assure the noble Lord, Lord Lester, that I have raised with my colleagues in the Ministry of Justice his plea in this regard, and I am sure that they will stand ready to have further discussions with him.

13 Mar 2009 : Column 1442

2.16 pm

Lord Lester of Herne Hill: My Lords, it is customary for somebody introducing a Private Member’s Bill to begin his or her reply by saying, “I am extremely grateful to everyone who has taken part. The speeches have been extraordinarily wise and interesting, and I shall read all of them”. On this occasion, I happen to believe what I have just said to be true and not part of the customary flattery or gratitude that we all express to each other in this most admirable institution.

I have listened to an extraordinary range of extremely wise speeches. When I listened to the right reverend Prelate and former Bishop, if that is the right way of referring to both of them, I realised that the Church of England cannot be described as the Conservative Party at prayer, as it once was. I have listened to speeches that are extraordinarily well informed. Perhaps the most devastating was that of the noble and learned Baroness, Lady Butler-Sloss, in dealing with the comments of the noble Baroness, Lady Deech, who made a very interesting speech which was about the same length as mine. I cannot really answer the noble Baroness, Lady Deech, in less than the time that she took herself, and I would not dream of doing so now. She said that she had thought about her speech for 30 years, but, after 30 years, she still does not seem to recognise the serious practical problems that ordinary people, especially working-class people, face under our current legal system. I think that almost everyone else and the Government have recognised those to be serious social problems.

I was counselled once by a very distinguished Conservative to consider the observation of the Judge Learned Hand, that the spirit of liberty is the spirit that is not too sure that it is right. I am not sure that the noble Baroness, Lady Deech, shares that view, but I keep the comment in my own chambers to remind me about the danger of dogmatism. I certainly feel that what has been said today, especially by the right reverend Prelate the Bishop of Winchester, ought to be debated in the form of amendments that probe and deal with some of the important issues that have been raised. I am very grateful to everyone. The problems of religious minorities, especially those of Muslim women, are really serious. I am indebted to the noble Baroness, Lady Afshar, for drawing our attention to them.

Perhaps I may be allowed a little joke in saying that the Attorney-General has done her best as a great advocate to make bricks without straw—by “straw”, I mean the right honourable Jack Straw, because it will ultimately be him and the Treasury who decide whether to do anything at all in legal terms before the next general election. It is their responsibility, not mine, to decide whether they are content to run the risk, should they lose power, of losing the only the opportunity that they will have to give some safety net to people who are highly vulnerable and their children.

I am an extraordinary optimist. It took me only 30 years to get the Human Rights Act, and I like to think that it might take less time to get this one. The Attorney-General will remember that at about this time of year we had a debate on the Forced Marriage (Civil Protection) Bill. At that time, the Government were opposed to the Bill that I had put forward. It was

13 Mar 2009 : Column 1443

debated here, just as it has been today, and the Leader of the House, standing in for the noble and learned Baroness, Lady Scotland, expressed not exactly hostility but certainly scepticism about the Bill. And then something remarkable happened, at about the same time of year: the Prime Minister personally decided to be in favour of the Bill. We sat down with Ministry of Justice officials and, by June, we had taken my Bill and turned it into something that the Government could commend.

I am perfectly sure that, if that political decision were now taken, it would be possible to strip out of my Bill any duplication—for example, with bereavement, and matters of that kind—to look at whether the two-year period was the right one or a longer one was necessary, and to try to avoid the situation in which the hated legal profession was in a position to be able to give people proper legal advice to protect their human rights. All those matters could be taken into account.

Next Section Back to Table of Contents Lords Hansard Home Page