Cohabitation Rights Bill [HL]

My Lords, before we begin the debate, I remind the House that the advisory speaking time is four minutes for Back-Bench contributions. This is to allow all colleagues to participate fairly and the House to rise at a reasonable time around 3 pm.

My Lords, this is not the first time I have introduced a Bill in this form that closely follows the Law Commission recommendations for financial relief for cohabitants in 2007, and for improving a cohabitant’s position on the death of an intestate partner in 2011. However, we now have a real prospect of achieving worthwhile reform for cohabitants. That is because this Government made a manifesto commitment to strengthen the rights and protections available to women in cohabiting couples. As part of fulfilling that commitment, on 5 June the Government opened a consultation on a set of proposals they were considering. It is due to close on 14 August and is very good news for those of us who have long sought reform in this area, including a majority of practitioners, judges and the specialist family law associations, including Resolution, the Family Law Bar Association and others. Why is there a need for reform? The House of Commons Women and Equalities Committee reported in 2022 that there were an estimated 3.6 million unmarried couples cohabiting in the United Kingdom—roughly a fifth of all couples and well over double the figure in 1996, 26 years earlier. Yet, although cohabitation is so widespread and increasing so quickly, nearly half the public still believe that cohabitation over a period, or a couple’s having a child, gives rise to a so-called common-law marriage, bringing with it financial rights if they separate. This false understanding, the common-law marriage myth, is just that—a myth. There are, in reality, virtually no financial rights protecting cohabitants who separate. It is true that couples can enter into formal cohabitation agreements to regulate their financial affairs, providing for ownership of assets and for the consequences of separation. But very few couples make them, and if they do not, they are thrown back on outdated and unwieldy trusts law, by which a partner can claim a share in the property that is in the name of the other, if—but only if—they can establish that this was the joint intention of the parties. Even then, the shares are difficult to determine. There is also an entitlement to child maintenance, but even that is limited in extent, and to secure more requires an application under the Children Act, which is costly and complex, and very few such applications are in fact made. Currently, one cohabitant, who may have given up a career or home, or both, to live with the other, or invested all their efforts and resources into supporting their partner’s business, home life or childcare needs, is left, on separation, without any recourse. Then, if one partner dies without a will, current intestacy rules provide nothing for the surviving partner. The deceased’s estate, often including the couple’s home, goes to the relatives of the partner who died, often children from a previous relationship who may have no good will towards the surviving partner. So, unless the surviving partner’s name was on the deeds, they get nothing and may be left homeless. There may be a right to apply for some provision under legislation passed in 1975, but that requires proof of dependency. Both the Bill and the Government’s consultation proposals seek to address this unfairness by providing for financial relief on the breakdown of cohabitation and by reforming what happens on the death of an intestate partner. The two sets of proposals have much in common. Both would require either three years of cohabitation as a couple, whether same sex or opposite sex, or the arrival of a child, before any claim could arise. Both would require that any claim be brought within two years of separation. Both would exclude couples who would be prohibited to marry because of close family relationships. Both would permit couples to enter into formal opt-out agreements, excluding applications under these proposals. Both would allow a broad range of remedies, including property adjustment orders, lump sum orders and pension-sharing orders. The consultation proposals would also allow for maintenance for a limited time in exceptional cases. My Bill would not provide for maintenance orders, although a lump sum could be payable in instalments. Importantly, neither set of proposals would treat cohabiting couples as if they were married or in a civil partnership. Marriage and civil partnerships have a special status in law and conscience. The consultation considers separate proposals to develop, simplify and clarify financial relief on divorce or dissolution, but those are irrelevant to the Bill. They recognise that marriage embodies a commitment to mutual support and sharing, hence the provision on divorce for continuing maintenance, where income dependence is established. The proposals in my Bill for relief for separating cohabitants are intended to address unfairness and exploitation. Contributions by one partner, who makes financial sacrifices for the other, should carry recompense. My Bill reflects the Law Commission’s proposals for what it called “retained benefit” to be removed and for any residual economic disadvantage to be shared between the parties. That may seem to some a complicated approach, but it addresses equitably the unfairness of one party profiting from a cohabiting relationship and walking away the richer from it, leaving the other party correspondingly poorer on separation. That is unjust. At worst, it is exploitative, and it needs addressing. There are, however, two differences of substance between the proposals in my Bill and the thrust of the proposals under consideration in the consultation paper. First, the Government’s proposals expressly mark a step towards fulfilling their manifesto commitment to halve violence against women and girls in a decade. I applaud and share that aim. I agree that financial relief for separating cohabitants would support that aim in cases that involve violence or coercion, but these proposals need to be of general application: whenever separation after cohabitation would lead to unfairness and less relief were granted, whether or not domestic abuse is a feature. The second difference is more significant. Although the concepts of reversing retained benefit and showing economic disadvantage may be overcomplicated—I would readily consider amendments to simplify them—I am concerned that the Government seem to have rejected compensation as a basis for relief on cohabitants’ separation. Their proposals are based only on the financially weaker party’s financial needs. However, the requirement for relief often arises because one party has unjustly benefited from sacrifices made by the other, so that the benefiting party ought, in fairness, to disgorge benefit achieved at the expense of the other. This injustice arises irrespective of need. To pose an example, a man gives up his lucrative career to look after the party’s child and to work on renovating his partner’s house, all to enable his partner to pursue her acting career. She becomes a successful actor, partly on the back of his efforts. Why should she keep the house and all the benefits of his contributions, for which he gets no recognition? The injustice does not arise from his needs—he may be able to earn a living himself; it arises from his sacrifices for her benefit. These are interesting issues, on which there may be competing answers. I have not sought to go through all the provisions of my Bill in detail, because what is now important is for the Government to collect and consider the consolation responses. However, I much look forward to engaging with the Minister and the Government on these proposals, and to making progress on this difficult area, where there is now widespread recognition of an unmet need. I beg to move.

My Lords, I am delighted to be able to support the noble Lord, Lord Marks, in introducing his Second Reading of this Cohabitation Rights Bill. In lay man’s language, I suppose one could call it the “unmarried couples divorce Bill”. The Bill reflects modern societal habits and ways of living, and it is time that Parliament legislated for this reality. The noble Lord brings with him considerable experience. I believe that, when he began his career at the Bar, he was a family law practitioner, so he brings to the Bill his expertise in that field. I am none the less somewhat fearful that the person succeeding me in this debate is the noble and learned Baroness, Lady Butler-Sloss, a former President of the Family Division, so I shall keep my remarks short but also, I hope, moderately uncontroversial, as I hope the Bill is. I also hope, following on from what the noble Lord said a moment ago, that the Government, who gave a manifesto commitment along these lines, and the noble Lord can amalgamate their efforts to produce one Bill which all of us can support. If it has the advantage of government backing, the assistance of the Civil Service and so on then we can produce at speed a Bill which is fit for purpose and will achieve the justice and the humanity the noble Lord speaks of. I am sure that there will be many issues of detail in relation to financial settlement orders and financial relief, the difference between whether periodic payments or simply lump sum payments should be allowed, and so on. However, I hope that these matters can be discussed between the two parties—the Government and the noble Lord—and, if necessary, ironed out in Committee. Essentially, this is an idea that has been long in development, as the noble Lord, Lord Marks, indicated. I seem to remember supporting a Bill similar to this, if not exactly the same, which was introduced into the other place by the late Lord Davies of Stamford, who was then the Member of Parliament for Grantham and Stamford. It had broad support there but never got much further than a Friday morning’s debate. As I said, the Bill recognises contemporary societal norms and, above all, protects the children of these unions in a way which is fair and right. I recognise the good sense of the example that the noble Lord, Lord Marks, mentioned just a moment ago about one of the couple working and the other not working, and so on, which seems highly important in modern family law. Unlike so many Private Members’ Bills, this one has a decent ancestry: that is to say, it flows from a Law Commission recommendation. It is detailed and clear. I am sure it is capable of improvement but, none the less, it is clear in its purposes and its effects. I hope that the House will give it its support today and allow it to pursue its further passage with the assistance of the Government.

My Lords, I am very happy often to bow to the expertise of the noble and learned Lord, Lord Garnier. It is unnecessary for him to be quite so polite about me, although I am grateful to him for it. I supported the earlier Bill from the noble Lord, Lord Marks, and he was kind enough to send me the link so that I could read what I had said previously. This is a sensible and moderate Bill, but the question is, of course, much broader: should there be any sort of legislation for cohabitation? The Government clearly want it in their manifesto. I have been married for 64 years and I am a patron of the Marriage Foundation, so I have thought with considerable care about the extent to which I should—as I do—support the Bill. One bears in mind that marriage is and remains the longest living partnership between parties, and that is greatly to be welcomed. Therefore, the question has to be: how far, if at all, will a cohabitation Bill affect marriage? I have come to the conclusion that I really do not think it will, because as the noble Lord, Lord Marks, said, there are the number of people living together. They have been living together regardless of marriage, and I do not think giving them any rights is going to make very much in the way of change. I remember the noble Baroness, Lady Deech, who is speaking today, referring in a previous speech to the fact that some cohabitants do not want to have any rules, but I suspect that the majority of cohabitants—certainly those in my family—have drifted into that relationship and just stayed in it. As the noble Lord, Lord Marks, pointed out, there is a particular group of people where one has a distinct advantage over the other, who is very often women, but not always; the noble Lord’s example was of a man. I will not repeat what he said, but there is a manifest injustice in the points that he has been making. The other group, which I think your Lordships probably would not know about, which is why I raise it, is the women coming from many parts of the world, often Pakistan, in an arranged marriage—a proper arranged marriage—living in a family in England where they go through the Muslim marriage, nikah, but they do not register the marriage. When they part—very often when the husband now has children, particularly a son, and he does not want this woman any longer—she is not married. She has no rights. She has no visa—not that I think the noble Lord, Lord Marks, will include that in the Bill, but the fact is that she is completely lost. Some form of cohabitation right would at least give her the opportunity to live in this country, at least for some period, and not be completely lost, probably with very little English. I am very concerned about this group. I have come to the conclusion that regulation is needed. I would like to think that the Minister will pick up this Bill, run with it and add to it the various points that the Government would wish to add. That seems a very neat way of doing it, but I strongly support the noble Lord’s Bill.

My Lords, listening to the speech from the noble Lord, Lord Marks, has entirely ruined the speech I had prepared. I was about to come heavily down against the Bill, because I come from a very poor community where marriage is almost non-existent and many of our poor social outcomes are related to that fact. But, listening to the way that the noble Lord, Lord Marks, laid out the details gives me some ability to engage in this process and give it another hearing. I still want to make my point. I declare an interest: I have been married for 21 years. Marriage is the gold standard. The Government tell us that there are now 3.5 million cohabiting couples in the country, that the law must respect modern relationships and that that is why the Government have put this before the House. My worry is the effect that this will have on poorer communities. Marriage has increasingly become the preserve of the better-off part of our community. Some 87% of those in high-income households are married; in the lowest-income households, that figure drops to only 24%. Surely our ambition should be to close the marriage gap, not legislate as if it does not matter. This debate is not about judging people. I come from a single-parent family. I watched my mother fight tooth and nail every day for the well-being of my brother and I. In fact, she is still expressing her views on every little thing I do to this very day, even though I am 55 years old. Almost half the teenagers in this country are not living with both their natural parents. This reflects the scale of family instability in our society. This matters, because a secure family is consistently associated with better educational outcomes, better emotional outcomes, and better economic outcomes and life chances for young people. Ian Rowe, who works with disadvantaged young people in New York, teaches what he calls a success sequence: finish school, get a job, marry, have children—I think the last bit is optional. Research shows that following this sequence gives young people a 97% chance of avoiding poverty. For me, that is the function that marriage performs. I come from the community in this country that has the lowest social outcomes, and that is a direct consequence of low instances of marriage. The noble Lord, Lord Marks, talked powerfully about the cohabiting myth or the common-law marriage myth, but if we weaken the legal uniqueness of marriage then we run the risk of setting up another myth: that you do not need to be married. Marriage provides a powerful social uplift. The sequence that I talked about is not ideology; it is social mobility in action. If we really are interested in boosting outcomes for the poorest communities in this country, we must support marriage, not legislate against it. If we want to tackle inequality, improve social mobility and reduce poverty then our task is to make marriage not less distinctive but more distinctive. It is to make stable, committed family life more achievable for everyone. For that reason, I remain slightly sceptical of the Bill, but I found the comments of the noble Lord, Lord Marks, very powerful and I will engage in the process and see how we can build this in order to support the poorest community and do justice to those who are cohabiting.

My Lords, I welcome this Bill and thank the noble Lord, Lord Marks, for introducing it. The Bill would provide important legal protections for many financially vulnerable people in cohabiting relationships. It would benefit women in religious-only marriages, so I am going to focus my comments on Muslim women. Around 25% of Muslim women are in marriages that are not legally recognised because they have undergone a religious ceremony in the UK and have not had the additional civil marriage, often through no choice of their own. I declare an interest, as that figure is from the Muslim Women’s Network helpline, and is from 11 years-worth of data. I want to pick up on a point that the noble and learned Baroness, Lady Butler-Sloss, mentioned about spouses arriving from abroad. I point out that for any spouse who arrives from abroad, if their marriage is registered abroad according to the laws of that land, it would be recognised as being a legally valid marriage. Through our helpline, we have seen the devastating consequences of the legal gap. Women who have been in a religious marriage for many years, sometimes decades, can find themselves homeless overnight when that relationship ends, with no legal right to the family home or financial provision. That situation is often compounded when women have given up their careers to become homemakers, have been subjected to domestic, financial and economic abuse, and have not been able to build up their own savings or have their own income. Some are older women whose husbands have simply decided that they want a younger partner and feel that they can discard their wife without any accountability. During the Covid pandemic, we supported women whose husbands died unexpectedly. Since their marriages were not legally recognised, there were cases where they were evicted from their home by adult children who asserted legal ownership of the property. For these reasons, I strongly welcome the legal and financial protections this Bill would provide. However, I believe the Bill needs further clarity on how it would operate where an individual maintains more than one household. For example, a person may remain legally married but separated, begin a cohabiting relationship with another partner and then that second relationship breaks down. In other cases, some individuals live with two different partners at separate addresses, with neither partner being aware of the other as the person spends long periods of their working life away from home. Within some Muslim communities, there have been cases where a man is legally married to one woman through a civil marriage and then enters into a religious-only marriage with another woman. How would competing claims be resolved? Clarity is also needed on whether the Bill would apply irrespective of a person’s immigration status, particularly for those with insecure immigration status, who are often most vulnerable to financial and relationship exploitation. Finally, I welcome that the Bill provides a safety net but does not place cohabitation on an equal footing to civil marriage.

My Lords, this Bill would impose a far-reaching legal regime on millions of adults who have expressly chosen not to marry or enter a civil partnership. The fact that some may think they have rights is no justification for taking away the liberty of others. Some may not know the law but a majority do, and we should respect the majority who have acted consciously, not those who will say they did not know there were no rights. Article 8 of the human rights convention protects the right to private and family life, which will be attacked by the Bill. Some of the comments that the public have made are interesting. They say in response to my article: “I thought that forced marriages were illegal” and “more of the authoritarian state”. The scheme is gravely lacking certainty and predictability. Litigation will flourish and costs escalate. There will be blackmail to settle, coercion and fear. Knowledge of a three-year time limit will lead many to walk out, as they have said, before three years is up. Retrospectivity is contrary to the rule of law. What amounts to cohabitation? There will be investigation of sexual, domestic and financial scenarios—the exposure of which should be private and informal. The inheritance rights proposed here would bring more trouble. Why should a surviving cohabitant, not named in any will, take priority over the children of a previous relationship, creating immediate conflict and unfairness? In fact, cohabitants already have rights under the Inheritance (Provision for Family and Dependants) Act 1975. I want to examine the much-used words “protection” and “vulnerability”. Those words are brandished to appeal to our emotions and to drive this issue forward. For a woman, typically, the protection she might need at the end of a cohabitation is definitely not the possibility of embarking on litigation with a former partner, without legal aid, designed to extract from him a meagre amount, most of which will be taken up in costs, for cohabitants tend to be less well off than married couples. The litigation will take a long time. The lead judge of the London Financial Remedies Court has calculated that there would be an extra 10,000 case applications a year, while sitting days are being cut and 88,000 cases are waiting. It would be litigation fraught with definition problems of the sort that appeal to lawyers. Have noble Lords noticed that it is in fact only the lawyers who support this legislation? The public do not. The majority of the comments on my article in the Guardian on this issue reject the proposed law. “If you want marriage rights,” they said, “get married. Keep the Government out”. The consultees to the Law Commission said the same in 2007. Who is really vulnerable? The children are, and there is nothing here to help them, and the Government have not reformed the maintenance law. Equally vulnerable are single women who may be saddled with childcare and lower pay, and the woman who has cared for her elderly parents for years but is not entitled to anything from them, and the sisters who live together but are disregarded by the law. I wonder why it is that only a sexual relationship brings women within the purview of a law to benefit them. I can find no good answer. Cohabiting couples can choose to marry, enter a civil partnership, make a will, sign an agreement, insure each other’s lives, become joint tenants and gain property by contributing to the improvement of the other one’s property. That respects autonomy; this Bill does not. It intrudes into private life, it makes for uncertainty and expense and it opens up new avenues of judicial discretion and lots of lucrative litigation. If there is a problem with Muslim unrecognised marriages, that needs to be solved elsewhere. The Bill is well intentioned but profoundly misguided. It is illiberal, intrusive and a bedroom tax—“share your bedroom and you will pay for it for evermore”. Noble Lords should protect freedom to choose one’s lifestyle and freedom of contract over deprivation of rights. It is your relationship and your choice.

My Lords, this may have been one of those occasions when noble Lords felt that they should have started their speeches with, “As I was saying”. I do not think I have spoken on this subject before, although I have listened to a number of debates. My noble friend has taken every opportunity over quite a long time to seek to have the law recognise how so many couples choose to live their lives—and still do, despite the introduction of civil partnerships. I agree with the noble and learned Baroness, Lady Butler-Sloss. I am not an expert and I have done no polling, but I do not believe this will affect the numbers deciding to marry. I hope it will not. I take what the noble Lord, Lord Bailey, said very seriously. His was an interesting perspective that we need to take into account. I recall an occasion—the noble Baroness, Lady Deech, referred to some of this debate—when there was a determined effort to extend cohabitation rights to people sharing a household when one was acting as a carer for the other, or particularly when siblings were living together. I was never persuaded by that. Relationships can be very close indeed but are entirely different from cohabitation. I heard a discussion on the radio a few days ago on the Government’s current consultation. One of the speakers, a woman—I say to my noble friend that I do not overlook the fact that either party may find himself or herself brutally discovering that cohabitation is not the same as marriage—described how, having supported her partner when she was the higher earner, she saw his career take off while she had children and, to care for them, reduced her working hours and lost chances for promotion. She had not realised that she could have kept up her national insurance contributions, nor what an effect this would have on her future financial situation, including her pension, in stark contrast to his. The Bill deals not only with financial matters, including intestacy and the opportunity to arrange insurance cover on a partner’s life, but with the right to register the death of a partner. The block on that must be so hurtful. The noble Baroness, Lady Deech, referred to Article 8. I am sure we will have opportunities in a different context to discuss Article 8 in the near future, so today is not the day to discuss how far it must extend. Unsurprisingly, my noble friend has done a very thorough job on the Bill. I will be interested to see what comes out of the Government’s consultation and any negotiations my noble friend will be able to have based on his Bill. I hope we may end up with a system that is as simple as possible and does not need the involvement of lawyers. The people who can readily afford them are probably the people who are least in need of this Bill. My noble friend seeks to modernise the law and to provide rights that many people mistakenly think they have. So do the Government, I assume, because you should not consult on something you do not want to do. Anything else would be too cynical.

My Lords, I pay tribute to the noble Lord, Lord Marks of Henley-on-Thames, who has pursued this issue with—if I may say so—characteristic persistence and conviction over many years, introducing substantially similar Bills on a number of occasions. These Bills undoubtedly raise important questions of law, policy and fairness. I do not begin from the proposition that there is no problem to be addressed. There plainly are cases in which the breakdown of a long-term cohabiting relationship can leave one party, often the economically weaker party, in circumstances of genuine hardship. There also remains a widespread misconception that common-law marriage exists, and that couples who live together automatically acquire legal rights equivalent to those of married couples. They do not. That misunderstanding has been recognised by Governments of different political persuasions and is reflected in noble Lords’ speeches and the Government’s current consultation. The question is not whether there is an issue, nor whether some cohabitants deserve protection, but whether this Bill provides the right legal and constitutional answer. I approach this debate not only as a lawyer but as someone who believes that there is an important constitutional principle which underpins much of our private law. That principle is autonomy. I would put it this way: the common thread running through our private law is not paternalism, but autonomy. The law exists to enable adults who are capable to make deliberate legal choices for themselves and not to relieve them of the need to make those choices. That principle runs through countless areas of our law. When two people decide to marry, they voluntarily assume a legal status containing both rights and obligations. If they prefer, they can enter into a civil partnership. If they want to regulate their financial affairs without marrying or without a civil partnership, they can execute an agreement or a declaration of trust governing ownership of property. If they want to decide who inherits, they can make a will. While they still have capacity, people now can determine who makes decisions on their behalf if they one day lose that capacity in the form of a lasting power of attorney. Each of those legal mechanisms expresses a simple but very profound principle. The law provides a framework, but adults make the choice. This Bill, however, proceeds from a very different premise. In effect, it says that significant legal obligations should arise not because people have chosen to undertake them but because Parliament has inferred them from the existence of a relationship. That is a significant constitutional step. Of course cohabitation deserves respect. Millions of people choose to live together without marrying for different reasons. Some might marry later, some will never marry and some consciously reject marriage; that is entirely a matter for them. The issue is whether Parliament should transform what, at its heart, is a factual relationship into a legal status without the conscious and voluntary agreement of the people whose lives it governs. That is why the difference between marriage and cohabitation is fundamentally important. Marriage and civil partnership are not simply descriptions of a relationship; they are legal institutions. They arise because two adults consciously decide to assume legal obligations towards one another before the law. Cohabitation is different. It is a factual circumstance. People may cohabit for months or years. They may intend eventually to marry. They may positively decide never to marry. They may have religious reasons for cohabiting. There could be financial reasons or family reasons. Those could also be reasons why they have chosen not to marry. They may simply prefer not to enter into a legal relationship. The reasons ultimately do not matter. The critical point is that the choice is theirs and belongs to them. I listened carefully to the very interesting speech from my noble friend Lord Bailey of Paddington, who made some of these points very sharply. He also pointed out very clearly that the characteristics of Jewish mothers are not limited to mothers who are Jewish. One of the themes running through the noble Lord’s Bill is that after a period of cohabitation, or immediately where there is a child, the law should intervene by default unless the parties have taken positive steps to opt out. That reverses what I suggest is the proper constitutional starting point. I understand why the noble Lord has adopted an opt-out model; indeed, the Government’s current constitution proposes a broadly similar approach. But there are issues, and I look forward to the Law Commission’s report, with an opt-out model. The choice between an opt-in and an opt-out model is not a drafting detail but a fundamental issue. I am sure the noble Lord the Minister will have something to say on that. There may be a point between us on this.

The noble Lord called me “the noble Lord”.

I am sorry. I did slip into that. I know that sometimes people say “the noble Lord”; I was not trying to be rude or forget that the Minister is in fact a noble Baroness. I hope she will forgive me; it was entirely accidental and unintended. My Lords, and the noble Baroness the Minister, there is another reason why I have reservations about the Bill, and this is a serious point. There is a constitutional principle engaged here as well, which is the rule of law. One of the points about the rule of law is that the law has to be certain. People have to know where and when legal rules, rights and obligations arise. The law should not leave people guessing where they have inadvertently entered into a legal relationship carrying significant financial consequence. Marriage does that; you know when a marriage begins and when a marriage legally ends. There is no uncertainty when those legal obligations arise. The same is true of a civil partnership, but this Bill is fundamentally different. One of the first questions the courts will have to answer is: when precisely did these two people become cohabitants for the purposes of the Act? Was it when they first stayed together most nights, when they gave up one property, when they opened a joint bank account or when they began introducing each other as partners? Those are fact-sensitive questions. To pick up a point made earlier, if you want to increase the role of lawyers and increase legal costs, you introduce a lot of fact-sensitive questions. The decision in Kimber v Kimber illustrates that there is no single, decisive test for determining whether two people are living together as a couple. I fear the Bill would increase uncertainty by increasing judicial discretion, and that makes outcomes more difficult to predict. It is sometimes said that these proposals simply recognise the reality of modern life. I agree that, at least at some point, the law should come into some sort of contact with reality. But recognising reality is not the same as creating legal status. The Bill would come close to creating what has sometimes been described as marriage without consent. The state should be slow to impose legal obligations that people might have deliberately chosen not to assume. Freedom means more than the freedom to make choices. It also means accepting responsibility for those choices. The law should support people in making informed decisions but should not too readily relieve them of the consequences of deciding not to enter into legal relationships carrying defined rights and obligations. That does not mean we should be indifferent to genuine hardship. Where children are involved, in particular, their welfare must be of the greatest importance. I look forward in particular to what the Law Commission says in that regard. I will take a moment to pick up the points made by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Gohir, about religious marriage and women being left in a very difficult position if they have had only a religious marriage and not also a civil marriage that gives them civil legal rights and protections. I think I am right in saying that the United Synagogue will not marry you religiously unless, at the same time, it marries you civilly. That is worth looking at; I know it has been brought before this House on previous occasions. It is worth looking at from the position not of treading on people’s religious freedoms but of protecting women in particular and making sure they have the legal rights they ought to as members of our civil society. But we do not need this Bill to do that, and we should not use it to do that. While I have serious concerns about the Bill, I am also conscious that the Law Commission is looking at this very issue. The Law Commission is one of the unsung heroes of our legal and constitutional settlement. I look forward to its work, which is invariably of an extremely high quality. For those reasons, although I have concerns about the Bill as drafted, I look forward to continuing conversations around this issue and the Bill in light of the work of the Law Commission.

My Lords, it is always a pleasure to speak after the noble Lord, Lord Wolfson. Of course I accept his apology for what was obviously a slip of the tongue. Before I turn to the points he made, which are interesting and valid as always, I start with the noble Lord, Lord Marks of Henley-on-Thames, whom I congratulate on securing a Second Reading for his Bill. I pay tribute to the noble Lord for his long-standing interest in cohabitation reform, his thoughtful and principled engagement on this important area of family law and his determination in bringing this Bill forward again. He and I spoke yesterday; I hope it was the beginning of a number of conversations on this important topic. I want to make it absolutely clear from the outset that this Government share his view that cohabitation reform is an important and pressing issue. That is why we committed in our 2024 manifesto to strengthening the rights and protections available to women in cohabiting couples. Broadly speaking, it appears that agreement has broken out all over this House, with the exception of the noble Baroness, Lady Deech, and to some extent the noble Lords, Lord Wolfson and Lord Bailey. I will come back to them in a moment. I begin with the case for reform. As the noble Lord, Lord Marks, said, there are currently around 3.5 million cohabiting couples—more than twice the number 30 years ago. Despite this, cohabitants have very limited financial protection when they separate or when their partner dies having not made a will. This lack of protection can leave the most vulnerable, including women, children and victim survivors of domestic abuse, exposed to significant financial hardship. It can also leave victims of domestic abuse with an impossible choice: leaving their abuser but then having no financial security at all or staying in a dangerous relationship. These problems are compounded by the fact that many people do not know they have no rights until it is too late. The noble Lord, Lord Wolfson, agrees with the Government and the noble Lord, Lord Marks, when he says that almost half the population believe that there is such a thing as a common-law marriage—the idea that a person will accrue some kind of financial rights simply by living with a partner for a number of years or having a child together. It is a myth. It is simply untrue. Some of your Lordships, in particular the noble Baroness, Lady Deech, have raised the point that many individuals choose not to marry. That is a choice that they are entitled to make, and we respect that. But we must be careful not to assume that such choices are always made with a full understanding of the law and its consequences. Children should not be left in a vulnerable financial position as a result of the decisions made by their parents. The noble Baroness, Lady Deech, and the noble Lord, Lord Wolfson, asked, “If they want those financial rights, why not just get married?”, but that risks overlooking the fact that many cohabitants are not aware of their financial rights, as many noble Lords have agreed. Some simply drift into having cohabited. Maybe they thought about getting married but never quite got around to it. I will return in a moment to the points made by the noble Lord, Lord Bailey, but for some getting married is too expensive and too hard to deal with. I simply disagree with the noble Baroness, Lady Deech, that more than half the population understand their rights. All the evidence suggests that public awareness campaigns do not improve this understanding at all. We are aware that we all risk the state overstepping into what are ultimately deeply personal choices about how individuals choose to live their lives. However, concentrating on the freedom of choice aspect ignores the imbalances of power that can exist within relationships and the point that a perpetrator of abuse may refuse to marry a victim precisely to ensure that they have no rights at the end of the relationship. The noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Gohir, made an important point about religious-only marriages. I will return to that in a moment, because that is something about which the Government are really concerned and about which we intend to do something. I recognise the concern expressed by a number of your Lordships that offering a framework of protections for cohabitants could undermine marriage. I reassure the noble and learned Baroness, Lady Butler-Sloss, that there is no evidence from other jurisdictions that have cohabitation protections that it has undermined marriage at all. The Government are proposing two very different regimes on relationship breakdown: a regime for divorce that is based on sharing, and a regime for cohabitation that is based on need. The Government support and value marriage. I hope that your Lordships’ House will forgive me for saying that I am always pleased when I see the name of the noble Lord, Lord Bailey, on the speakers’ list of a debate in which I am taking part. He and I come from very different political parties but he always says something interesting, and I thought his speech gave us things to think about. The reason why we say that we are in favour of and support and value marriage is that yesterday we launched our consultation on reforms to weddings law. This forms part of a piece with the consultations on what happens to finances after the breakdown of relationships. We recognise that marriage can be too difficult and too expensive for many people, so we propose—but we are very interested to know everybody’s views about this—moving from a buildings-based to an officiant-based regulation system. That would, for example, permit those who conduct religious marriages to also conduct civil marriages at the same time, so that those who take part in, for example, Muslim marriages can have the protections afforded to others in that situation. Although the Government agree with the noble Lord, Lord Marks, on the vital need for cohabitation reform, we do not believe that this Bill is the right vehicle in which to deliver it. I have four reasons for saying this. The first is our ongoing consultation. It will not have escaped your Lordships’ attention that we launched our A Fairer End to Relationships consultation last month, which sets out our approach to cohabitation reform, together with proposals to reform financial remedies on divorce. It represents one of the most significant opportunities in decades for the reform of family law. As part of the consultation, the Government are engaging with a wide range of interested parties to test our proposals and try to achieve consensus about the direction of reform. Legislating at this stage would pre-empt the outcome of that consultation. The second reason is that the Government are not persuaded that the Bill’s proposed model for cohabitation reform meets the policy objectives set out in our consultation. Our objectives include prioritising a fair outcome for children, protecting the vulnerable, and providing a clear and accessible framework—I take on board what everybody said about lawyers; I think I had better pass on quickly—whereas the Bill proposes a compensation-based approach to cohabitation reform. In broad terms, this means giving the court power to compensate a cohabitant if they have been economically disadvantaged as a result of contributions made during the relationship. The Bill would also allow the reversal of an economic benefit gained in the relationship. This would require the courts to retrospectively assess how contributions create advantage or disadvantage. This would be complicated, it may be hard to evidence, and it would be hugely likely to increase conflict and cost. We know that very acrimonious court proceedings are bad for families and particularly bad for children. Most importantly, the compensation model does not reliably ensure that needs, particularly the needs of children, are met. For these reasons, the Government prefer a needs-based approach to cohabitation reform which prioritises meeting the financial needs of cohabitants when they separate. For example, this would capture needs which have arisen completely independently of the relationship, such as serious illness or disability, which might not be catered for under a compensation model. Under the Bill, a cohabitee who got a serious illness—for example, ME—shortly after the relationship began and, as a result, could not “contribute” to the relationship would be left unprotected. That cannot be right. This is particularly important in the cases of families with children, as it is children who are most often affected by the financial consequences of relationship breakdown. A needs-based approach also offers a clearer and more accessible framework, as it respects the choice of people not to marry but is also designed to look after the economically weaker parties in the relationship. I point to the fact that compensation, as a principle, is rarely used even in divorce cases, although we are consulting on whether it should have a place there. We will think about it, but at the moment our view is that the needs-based model is more likely to achieve our objectives. I note that the Bill reflects the proposals recommended by the Law Commission, but they were made almost two decades ago and things have moved on considerably since then. In particular, there is now much greater awareness of domestic abuse, including economic abuse. It is right, therefore, that we consult on our own approach. I reassure the noble Lord, Lord Marks, that our approach would benefit not simply victim-survivors of domestic abuse but all cohabitees, once the relationship breaks down, if they are in need of economic support. Our third reason, which I can deal with very quickly, is coherence across the system. The Government believe that cohabitation reform and the law in relation to finances on divorce should be examined together. Although we propose distinct and separate regimes, we are of the view that we should draw on the Law Commission’s 2024 scoping report on financial remedies, which raised important questions about how the law for divorcing couples could be made fairer and more certain—a topic on which the noble Baroness, Lady Deech, has spoken often. I have listened to everything she has had to say, together with the contributions of the noble and learned Baroness, Lady Butler-Sloss, on this topic, with great interest. Our consultation therefore makes proposals aimed at improving the system for divorcing couples who go through financial remedies proceedings. By contrast, the Bill would deal with cohabitation reform in isolation. In our view, that risks missing a wider opportunity. What we want is a coherent, consistent and modern family justice system for married couples who divorce and for cohabitants, whether on separation or on death. We want a system which respects freedom of choice in how families arrange their lives while protecting the vulnerable. That is why we are consulting on all these three areas of reform together. Finally, the Government have concerns about the Bill’s approach towards intestacy and inheritance claims, because the Bill’s proposed definition of “cohabitant” and its qualifying criteria would create a broader entitlement to intestacy rights than the Government are currently considering. I hope I have made it clear that the Government are committed to cohabitation reform. We have already begun that work and have committed to legislating when parliamentary time allows, having considered the results of the consultation. Our consultation sets out a clear framework for cohabitation reform that will meet the needs of women, children and those otherwise vulnerable. Although the Government cannot support the Bill from the noble Lord, Lord Marks, for the reasons I have given, I hope he will be reassured by the Government’s clear commitment to reform in this area. We share his objective. He and I have talked over many months about various Bills that have come before the House and about other topics. I profoundly hope that we will continue to do so. We want to deliver vital financial protections for cohabitants, so any difference between us is not about whether reform is needed but simply about how best to achieve it. I therefore respectfully invite all noble Lords to engage with the consultation and to give us their views. We want to get this right and we want to do it in a way that is fair, workable and lasting.

My Lords, I am very grateful to everyone who has contributed to this debate on a Private Member’s Bill. It is an unusual position that we find ourselves in, with my Private Member’s Bill, which was introduced just after the King’s Speech, and the consultation, which was announced on 5 June. The two are proceeding in parallel, which is unusual, and which is why I did not go into the detail of my Bill. We nevertheless had a very interesting debate, with some very important points being made. I should start with my friend—he is a chambers colleague as well—the noble and learned Lord, Lord Garnier. I welcome his support for this legislation, and his urging the Government and me to see whether we cannot get together to produce a single Bill that perhaps has the best and avoids the worst of the proposals on either side. In so doing, I should make it clear that I see a great deal of merit in almost all the consultation proposals. My doubts about the needs-based scheme and the compensation-based scheme, which the noble Baroness, Lady Levitt, explained, can be capable of resolution where there is some case for righting injustice and unfairness, where there is a need for compensation, where one party has been exploitative of the other. That is a real danger; unlike the needs-based regime that the Government are consulting on, this involves addressing the needs of cohabitants who are left. I also take the point about the other difference that I mentioned between us: the role of abuse and violence in relationships, where the weaker partner is coerced by the stronger partner into accepting a position whereby they have very limited rights. They do not get married, and they are left without resources and often with children. That is, of course, a very powerful argument for the needs-based approach. I hope that we can achieve most of our objectives. The very fact that there is this consultation and that we are going to get legislation is the most important aspect of this debate. I particularly welcome the support of the noble and learned Baroness, Lady Butler-Sloss, which has been consistent since I first introduced this Bill. I welcome it particularly because, as a member of the Marriage Foundation who is committed to marriage—as indeed I am, and I think all the supporters of this Bill are—she has considered carefully whether there is a risk of an adverse impact on the institution of marriage from proposals for cohabitation support. I agree with and am warmed by her belief that there would be no adverse reaction. I thought that the noble and learned Baroness and the noble Baroness, Lady Gohir, raised a very important point, which the Government are going to consider, about religious-only marriages. I quite understood the point raised by the noble Lord, Lord Wolfson, that the United Synagogue may have got it right in insisting on a dual marriage, but there are nevertheless many cases where a religious-only marriage, in a Muslim context, can result in serious injustice to women who are later left. I turn to the central point made by the noble Baroness, Lady Deech, and the noble Lord, Lord Wolfson, on autonomy. I accept that autonomy has an important place in English law, but relationships and marriage both develop over time. Many relationships start with cohabitation and then move into marriage, of course, then they adopt the regime that we apply to marriage or to civil partnership. But it is a gradual process, and people sometimes fall into cohabitation without considering either a cohabitation agreement or whether they should opt out of such legal protections as we introduce. Then children come along, not always entirely expected and not always intentionally, but nevertheless they change the dynamic of a relationship. I believe it is incumbent on society and on the law to keep up with that and to recognise that injustices and unfairnesses can follow and relationships then break down—it can also happen when one partner dies—if the law has not made sure that there are protections in place. I am very grateful also to my noble friend Lady Hamwee for her reflections on this Bill and her support for it. It is indeed Liberal Democrat policy to have this kind of reform, although I should say that I moved the conference motion that brought that about, so I may take some responsibility for that. I am hopeful. I heard everything that the noble Baroness, Lady Levitt, said in reply. We have had conversations and I hope we will have many more during the course of the consultation. We need to go forward with both for now, and I hope there will be a time when we may come to an amalgamated position.