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To conclude on this point, most commentators on this have pointed to a 10-year period as the right one. The public, when surveyed, think there is such a thing as common-law marriage. However, when questioned in more detail, it is only when you get to a 10-year period that the public think that there should be rights. When the period of cohabitation in the scenario put to the public is reduced to two years, only 38 per cent of respondents think that a cohabitant should have a right to financial provision on separation. I support this amendment, but would extend the period to five years. However, I put it to the Committee that Amendment 4 is extremely dangerous and expensive in time, in stress, in legal aid and in private funds.

Lord Henley: I too have my name down to the amendment in the name of the noble Baroness, Lady Deech, and I support the move to extend the period from two years to five. I support it because it makes a bad Bill a slightly less bad Bill, but I certainly do not support Amendment 4, to which we will come later, which seems to undermine the very purpose behind Amendment 1. I also have to say that I am now in a state of slightly greater confusion on the whole matter of that period of two years or five years. I always thought it would cause problems and therefore create work for the lawyers—which the noble Lord, Lord Lester, always denied—because there is always the problem of defining when that period of two years started. Did it start with this one-night stand, as it were, or that one-night stand, or whatever? Does it start when the toothbrush moves into what becomes the joint home? We all know what these things are like.

I am now told that it is not just a continuous period of two years or five years; it can be a whole series of a week here, a week there, a week whenever; so we have even greater evidential problems of defining how and when that two or five-year period lasts. No doubt the noble Lord, Lord Lester, who seems to have grabbed this group of amendments, will, when he comes to respond, let us know something about those evidential problems of defining the two years and the five years.

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I move on to Amendment 4. I shall try to be brief, bearing in mind what the noble Lord, Lord Lester, had to say. As I said, I believe this undermines what the noble Baroness, Lady Deech, and I are trying to do in Amendment 1, and therefore, I will oppose the amendment. I appreciate that the two amendments are grouped and they appear together in the groupings, but I will just remind the noble Lord, Lord Lester, of the mantra that is attached to the list of groupings produced every day by those who serve us in this House. It says:

“Although every effort is made to secure agreement to these groupings, they remain informal and not binding. It is therefore open to any Peer to speak to an amendment in its place on the Marshalled List”.

Therefore, I will—along, I presume, with the noble Lord, Lord Lester—support Amendment 1, because I think it will improve the Bill. However, when it comes to Amendment 4, I certainly will not support that amendment and I do not feel that I am bound by the groupings to accept it.

5.45 pm

Lord Lester of Herne Hill: Before the noble Viscount sits down, may I ask for his help? He interrupted my opening speech, and I apologise if there was any impoliteness. Amendment 4 is grouped with Amendment 1, and I have not yet spoken to it. Would it be for the convenience of the Committee if I completed that now, so that we have it all in one piece, or would it be preferable for me to deal with it by way of reply, which would have the inconvenience that others cannot then reply to what I say? It seems to me to be better if I briefly explain Amendment 4 at this stage. I should be very grateful for guidance from the noble Viscount, Lord Henley, as to what he would like.

Lord Henley: I am very grateful for the repeated promotion of my status in the peerage, but I assure the noble Lord, Lord Lester, that I am a mere Baron like him, and I have not risen to the dizzy heights of a Viscount. Before the noble Baroness, Lady Farrington, intervenes, it is open to the noble Lord to speak on it now, if he wishes, or later. If he speaks to it now, it is still open to other noble Lords to address him on that matter, because we are in Committee on the Bill, where there are no binding rules on what happens. Before the noble Lord gets up, I think that the noble Baroness, Lady Farrington, wishes to intervene.

Baroness Farrington of Ribbleton: I accept all the points about there being no binding rules, but it seems to me that the normal courtesy of the House is that someone moves an amendment before others speak to it. I am in the hands of the Committee.

Lord Lester of Herne Hill: I did move the first amendment. Amendment 4 is grouped with Amendment 1.

Baroness Farrington of Ribbleton: What I was trying to explain to the noble Lord is that it may be a courtesy for the person in whose name an amendment stands if they have the opportunity to explain why they have put their name to the amendment. Then other noble Lords can speak to it.

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Lord Henley: Shall we leave it to the noble Lord, Lord Lester, to say whatever he wants to? It might be that the noble and learned Baroness, Lady Butler-Sloss, wishes to speak.

Baroness Butler-Sloss: I have a feeling that Amendment 4 is in my name. I should like to respond on Amendment 1 and then move Amendment 4, if that is thought to be appropriate.

Baroness Farrington of Ribbleton: The noble and learned Baroness needs only to speak to Amendment 4, as only one Motion can be before the Committee at any one time. Because the amendment is grouped with Amendment 1, it would be totally appropriate for the noble and learned Baroness to speak to it.

Lord Henley: I may have slightly confused the Committee. I was trying to make it clear that we are talking to Amendment 1, but I will not feel that I am bound by the convention on groupings, whereby if the first amendment in a group is accepted, one then accepts that the others come with it. I am making it quite clear—I hope that the noble Baroness, Lady Deech, will agree with me on this—that if the Committee agrees to Amendment 1, she and I certainly do not feel that we are bound to accept Amendment 4, and we will oppose it in its due place.

Baroness Butler-Sloss: It appears to me as though it would be appropriate for me to speak on Amendment 1 and allow Amendment 1 to be completed. Then I will move Amendment 4, if that is right.

Baroness Farrington of Ribbleton: Although it is not for me to tell anyone what to do, I think it may help if we degroup these two amendments, because the Committee is getting into a difficulty. Therefore, if we deal with Amendment 1, after it has been decided on, the noble and learned Baroness can decide whether to move Amendment 4.

Baroness Butler-Sloss: In that case, I will speak on Amendment 1, which I strongly support. I notice that, although the noble Baroness, Lady Deech, said that it would be preferable if it was 10 years, no one has put that proposal forward. We are dealing with five years and, so far, as the Committee will see, there is unanimity about five years. That is clearly right, because it demonstrates a couple’s commitment to a genuinely serious relationship.

Two to five years was supported by the Law Commission. There are people who need help, even though they choose not to marry or are unable to. From my perspective, the Bill is intended to meet a narrow but crucial problem. Since the noble Baroness, Lady Deech, has already spoken rather more broadly, I will speak on a matter relating principally to those who would not need five years.

Children are obviously born to those who cohabit as well as to those who marry and they generally suffer when parents part. There is a group of women—and, occasionally, men—who are left, usually by the man, with children and no maintenance or other support. These women find that they have no right to the house, because it is in the man’s name. There is a major

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problem for the state as well as for the children and their carer, because the state picks up the bill where the man should. He should pick up the bill not only for the children, which certainly comes under the Children Act 1989 and subsequent legislation, but also for the mother—or, occasionally, father—of the children who is left to look after them; he should pick up the bill not only for maintenance but, at least, for a roof over their heads while the children are young.

The noble Baroness, Lady Deech, has made the point that Schedule 1 to the Children Act 1989 appears to provide for the carer of children as well as the children. However, that must be read subject to Section 8 of the Child Support Act 1991, which does not permit a court to deal with maintenance for the benefit of children where the respondent to the application earns less than £104,000. That is not the group of families with which the Bill is concerned. There has been the occasional case where money has been paid. A Sudanese woman wanted to see her child in the Sudan and got her air fare. However, actual maintenance for the woman for the benefit of the children where the man has only modest means is not met by Schedule 1 to the 1989 Act. I respectfully disagree with the distinguished and learned academic the noble Baroness, Lady Deech, but my experience as a former judge and, much more important, that of family barristers and solicitors is that this schedule is scarcely used and has scarcely been of any effect. The Bill would cover that problem. It would take the children off the state, which is one of the most important things.

The noble Baroness, Lady Deech, spoke of the importance of there not being litigation and said that the Bill would promote it. A later group of amendments to the Bill deals with alternative dispute resolution. The noble Lord, Lord Lester of Herne Hill, as the promoter of the Bill, supported by me and those behind us—the Resolution Foundation and the Family Law Bar Association—think that ADR is extremely important. The draft rules for family proceedings have family dispute resolution. You would not be able to take advantage of that unless we had ADR in the Bill.

The suggestion that being in open court will cause a flood of the public is, if I may say so, pitching it a bit high. The public are not entitled to be in the court, only the press. I cannot believe that the press will attend every county court case, which is where those cases will be heard before circuit or district judges. There will be no publicity, because the rules put forward by the president of the Family Division in his recent practice direction say that the press can say nothing that is not approved by the judge; one of the most important points that you cannot have will be the names of the family. If the Bill goes through, it will get the benefit of that practice direction and, whatever blackmail there might be behind the scenes, it will not be on publicity. I must ask the noble Baroness: what sort of blackmail goes on by the men? Women suffer from blackmail as much as men. I do not see these as the floodgates.

Another point in Clause 8, to which we will come and which is not in dispute, shows that the woman will only get enough money for her “reasonable needs”, not a footballer’s girlfriend’s bonanza. It will be for a

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limited period, because she should be expected to get back to work as soon as possible. Consequently, I do not see that the points made by the noble Baroness should trouble the Committee, while I am particularly happy that we are, so far, all in agreement on five years instead of two—an entirely sensible amendment.

The Lord Bishop of Southwark: The right reverend Prelate the Bishop of Winchester, who sadly cannot be present this evening, spoke at Second Reading of being a critical friend of this Bill. The result is that these Benches can support some of the amendments, but not others. I apologise that I shall shortly have to leave the Committee to get back to my day job, but the fact that these Benches will then be empty does not reflect a lack of interest on our part. We hope to play a full part at a later stage.

Before I go, I am pleased to support Amendment 1. The noble Baroness, Lady Deech, referred to Families in Britain: An Evidence Paper, prepared for the Cabinet Office in December 2008. We were told in that work that about three in five first cohabitations turn into marriage and that less than a fifth of cohabiting relationships survive five years or more. It would, therefore, seem that five years is about right as a qualifying period for protection.

Lord Brett: Before I come to the amendment, perhaps I should declare an interest as a cohabitee. That is not entirely of my choosing, as I have asked the lady in my life on several occasions to change the situation. To date, my blandishments have not been successful, but mutual friends have said that that shows good judgment on both our parts. However, as we put things on the record in this House, the publication of that declaration in Hansard may—who knows?—help to change the situation.

At Second Reading, my noble and learned friend Lady Scotland made it clear that the Government do not support this Bill, believing it to be unnecessary and to take the wrong approach to addressing the mistaken perception that cohabitation comes with a quasi-marital legal status. A better approach would be to seek to correct the mistaken perception, rather than to change the law to match the mistake. We also believe that the approach adopted by the Bill would generate large-scale litigation, with a vastly increased burden on the parties, the Legal Aid Fund and judicial resources.

Amendment 1 would, it is true, go some way towards reducing the scope and impact of the Bill for those affected by its provisions, but our concerns remain. As the Committee has heard, it is also true that, according to the 2001 census, the number of unmarried couples living together is over 2 million—and I would suggest, as has also been said, that cohabiting couples are more likely to separate than married couples. Yet our concerns remain.

Given both the time constraints and the lateness of the hour, it might help the continuation of the debate if, rather than intervening on every single amendment to offer a government view, I were simply to invite those Members who wish such a view to be expressed to seek it. I would thereby intervene not on every

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point, but only where the parties believed that the Government’s view might add to the elucidation of this matter.

6 pm

Lord Lester of Herne Hill: I think therefore that procedurally the right thing for me to do now is to move Amendment 1. I beg to move.

Amendment 1 agreed.

Amendment 2

Moved by Baroness Deech

2: Clause 2, page 2, line 7, leave out paragraph (b)

Baroness Butler-Sloss: If I might respectfully say so, I think it should be Amendment 4.

Baroness Farrington of Ribbleton: The noble and learned Baroness will have to speak to Amendment 4 in its place when we get there.

Baroness Deech: This amendment seeks to highlight the fact that such advantages as might be conferred by this Bill will be confined to those who are not family members and not related within the prohibited degrees. I find this inexplicable. The purpose of my set of amendments is to extend whatever law we end up with to those who are in family relationships. There is no definition of cohabitants contained here. Sexual relationship is presumably not necessary, or fidelity or any particular relationship save an assertion that two people are cohabitants. It seems to me wrong to omit from any benefits that might flow from this the elderly daughter who has looked after a father for many decades, or two sisters who have cared for each other and shared a home. Indeed, to omit those who are within the prohibited degrees piles discrimination on discrimination. Our human rights say that there should be no distinction drawn in law in the rights offered thereby depending on marital status. To deny any of the benefits of this Bill to, say, a brother and sister living together seems to me to discriminate against them, and I cannot see why this should be. The point about prohibited degrees is to prevent people from forming a sexual relationship that is unhealthy and bad for children genetically, but it has nothing to do with the financial support that one person may demand from another, or, much more importantly, what the situation might be on death.

I have spoken before in this House, as have others, about the two sisters, the Misses Burden, who are in their 80s and have lived together and shared a house throughout their entire lives. They have argued repeatedly, including in front of the European Court of Human Rights, that they should have the benefits that married couples and civil partners have, particularly on death, and that they should be allowed to postpone inheritance tax when one of them dies so that the survivor does not have to find a sum—£60,000 in this case—which would probably mean that the house would have to be sold and the remaining sister would become a burden on the state. There is agreement around this House that this should not be the case.

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This House has tried before, during the passage of the Civil Partnership Bill in 2004, to include people who are within the prohibited degrees in some of the tax benefits that are given to others. The proposal was passed but fell later on the ground that that Act was not the place to do it. This Bill therefore seems to be the place to do it. We all have a great concern for the burdens shouldered by carers, who are often close family members within the prohibited degrees. They could not marry or enter into a civil partnership, will not be deemed to be cohabitants and will get none of the benefits, such as they are, in the Bill.

By debating cohabitation, this House shows that it supports unions and commitment and that it thinks that support should be given to cohabitants who have fallen out. Surely it must be the same for—let us imagine—two sisters who have expressed fidelity to each other, supported each other and become dependent on each other. Article 14 says precisely that there should be no distinction based on birth or other status. I have mentioned it before. In the case of two family members, the length of commitment goes on until death. It has never ended; there is no question about it. One needs to avoid upsetting them and making them feel bitter and resentful because benefits are given to cohabitants.

I simply cannot understand why the possibility—not even the existence—of a sexual union is of such importance. It is very odd indeed that only a sexual union should attract the benefits of the Bill. The Government took down the barriers between marriage and other forms of association by giving advantages to civil partners of the same sex. Now that that barrier has been taken down, there is no logical case for not including in the Bill two family members, such as two sisters or a father and daughter. Of course, what they get will be at the discretion of the court. It has nothing to do with anything unpleasant, which is what prohibited degrees are normally associated with, but it is discriminatory to deny relief to two people whose companionship has lasted for decades.

To illustrate the discrimination that arises from the Bill, imagine three sisters. One is very pretty and lives with a footballer for a while. One marries a vicar and their union lasts for many years. She works extremely hard, but they have no money. The third sister never marries and looks after her elderly father for decades. Under the existing law and the Bill, we will end up with a situation where the vicar’s wife, on divorce, will probably get nothing because there is nothing to go around. The lady who lives with a footballer for a while will get a great deal. I do not believe that reasonable needs are treated meanly by the family courts. There is the recent, extreme, example of Sir Paul McCartney’s wife, whose reasonable needs were estimated at £28 million. The courts have full discretion. We do not know at all how that will come out. The ones who get the benefits are the ones who find rich men. That is what is so upsetting and why family members should be included.

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