It is a pleasure to see you in the Chair, Mr. Weir. I believe that this is the first time that I have spoken under your chairmanship.
I am delighted to have the opportunity to debate this subject with the Minister of State, and I look forward to sharing thoughts and ideas on this topic with her and other hon. Members.
I begin by telling a story about a woman whom I met at a roving surgery in my constituency in August. She was homeless, and she and her 14-year-old daughter were sleeping on sofas facing each other in their friend’s one-bedroomed flat on an estate. The woman’s long-term relationship had recently broken down. She had lived with her partner for 14 or 15 years, brought up their child and contributed to all the household bills, but when the relationship broke down she was entitled to nothing, and her partner forced her to move out of the family home. She is unlikely to be entitled to a share of their home unless she can prove to a court that there was a common intention of joint ownership, either by agreement or through financial contributions to the property itself. When they moved out of the home, her daughter had to change schools at a critical time, just as she was about to start her GCSEs.
My constituent’s case shows, on a human level, the dangers that couples face when cohabiting relationships break down. Because she was not married, the courts do not have the power to consider what might be a fair outcome, so she is effectively left destitute. Sadly, she is not alone. The statistics show that substantial and increasing numbers of people choose to live together. Between 1996 and 2004, the number of cohabiting couples with children increased by more than 50 per cent. to 2.2 million. The proportion of unmarried women who cohabited with a partner trebled between 1979 and 2002. Today, one in three babies is born outside marriage, compared with one in 20 in 1963. Those statistics show the huge social changes in our society.
I am sure that everyone in the Chamber recognises that people choose to marry or cohabit for various reasons, but most couples have no idea that there is no such thing as a common law marriage. It is not surprising that people who are not lawyers do not know anything about the law. Fortunately, most of us do not have much to do with the law. A recent survey showed that more than half of British people believe that couples who live together for a certain amount of time acquire the same legal rights as married couples. Despite the fact that common law marriage was abolished in 1753, the idea that it exists is still prevalent.
I have been working with Resolution—a professional organisation of family lawyers who advise people on the legal aspects of their relationships when they break down. Many people who seek legal advice are devastated to discover they have no rights on the breakdown of a cohabiting relationship. The reality is that men and women, whether heterosexual or homosexual, who live together without a marriage or civil partnership, can face devastating hardship when their relationship breaks down. People who live together outside marriage or civil partnerships have no claim against their partners for financial provision when the relationship ends, except on behalf of their children.
A cohabitant can make a claim against property ownership, but the rules governing property claims are complex and confusing. Unless there has been a financial contribution, it is difficult to establish an interest in a home owned by one partner, or that the other partner has made a contribution to that home. Often, such matters can be decided only in court, which is expensive and time-consuming and has uncertain results. It is an emotionally exhausting and adversarial process for people at a time when they are vulnerable and frightened. Many people feel they cannot risk destitution by ending a relationship, even if their partner has become abusive or violent. We must change the law to aid those people—mostly women—who simply cannot afford to escape dysfunctional relationships.
Another very real and human issue linked to cohabiting relationships concerns the rights of the father. Until this issue emerged in a case in my constituency, I was unaware that a father in a cohabiting relationship has no automatic parental rights unless his name is on the birth certificate, or there is a formal agreement or court order regarding the child. I became aware of this when dealing with a constituency case in which a child’s natural mother walked out of a relationship and broke off all ties with the child and the child’s biological father, but the father was not named on the birth certificate. The mother had changed her name, but because the father could not prove that she had changed her name through any process of documentation, the child has been left in a legal limbo without a nationality, and he is unable to have or apply for a British passport. His human rights are in limbo because of those circumstances, and he finds himself in a bizarre, almost Kafkaesque, situation. We have been working with the Home Office to try to find a happy outcome for that child. It is right that there should be some sort of process, but that child must, at some point, be granted a form of identification.
In many other countries, including Australia and New Zealand, legislation exists which enables the courts to make remedial provision for partners exiting a cohabiting relationship. In New South Wales, for example, legislation enabling financial provision to be made for cohabitants on the breakdown of a relationship was introduced under the De Facto Relationships Act 1984—more than 20 years ago. Sadly, the English courts have no such powers, yet there is no evidence from those countries that the introduction of such laws undermines the institution of marriage or has any effect on marriage rates.
Another interesting anomaly is that cohabiting partners are recognised in law for certain purposes. The Pneumoconiosis etc. (Workers’ Compensation) Act 1979 and the Fatal Accidents Act 1976 both impose a liability to pay compensation to the cohabitant of a deceased where the couple have been living together as husband and wife. Similarly, a cohabitant can make a claim against the estate of his or her partner under the Inheritance (Provision for Family and Dependants) Act 1975 without having to prove dependency if they lived as husband and wife in the same household for two years immediately preceding the death. With welfare benefits, the Department for Work and Pensions recognises cohabitation when establishing people’s benefits claims, and takes into account the duration of the relationship, the performance of household duties and the degree of mutual commitment. It is ironic that the state takes account of cohabitation while the relationship is ongoing, but on the ending of the relationship, couples are left to their own devices to sort things out.
Nearly 10 years ago, the Law Commission described the law on couples who live together in England and Wales as unfair, uncertain and illogical. I was delighted when it produced a consultation paper in May setting out possible reforms. It is certainly time for reform. Several issues are likely to be at the centre of the debate about any new law, the first of which is whether the new law should be an opt-in or opt-out law. I believe that to provide a safety net, any new law should apply equally to all. I also believe in and recognise the right that individuals have to freedom of choice, so there should, of course, be the option for cohabitants to opt out of this law.
Another question concerns whether any new law should apply only to cohabiting couples who have children together. Obviously, if one partner in a couple with a child is leaving the relationship, that could lead to issues about where that child goes, in particular the homelessness of that child. Alternatively, should the law apply to people who have lived together for a certain minimum period of time? I believe that any new law should apply to all cohabiting couples if they have children together, regardless of the length of the relationship. If they do not, the law should apply after a minimum of two years’ living together.
The overriding objective should be fairness, social justice and equality under the law. This means that fair account is taken of any economic advantage derived by either party from contributions, whether domestic or economic, made by the other during the cohabitation. Conversely, account should be taken of any economic disadvantages suffered by the other party in the interests of the family’s children or the other person, for example by their giving up work to look after a child.
It is interesting that today the Church of England is coming out with its position on the Law Commission’s consultation. I am delighted that the Church of England wants what is basically an opt-out law, which should cover everybody unless they choose to opt out. I disagree with its view that the law should apply only to couples with children, because it is not just in the care and upbringing of children that people make contributions to another person’s life. For example, many couples can work together in businesses or can run them together, and someone can simply lose their job or the value of the stake that they have built up in that business over a long period of time when the cohabiting relationship ends. So other areas need to be examined.
I do not believe that the divorce law presumption of equal sharing should apply to couples who live together. There should be a presumption that the parties would be self-supporting, and maintenance orders should be limited to a maximum of three years, unless there were exceptional circumstances that warranted a longer period.
Earlier this year, I tabled an early-day motion on this subject, and I am delighted that it has attracted cross-party support from more than 120 hon. Members, including the hon. Member for Buckingham (John Bercow), who is in the Chamber. I am sure that many of those right hon. and hon. Members signed it after hearing of the appalling situations that their constituents had found themselves in following the breakdown of a cohabiting relationship, because such instances motivated me.
After tabling the motion I received a series of heartbreaking, anonymous letters from people in all parts of the country. One was from a woman who has been living with her partner for 17 years, and they had five children together. She would like to leave that relationship, but is unable to leave her partner as he refuses to give her a share in the family home, which is in his name. In her letter to me, she described her situation as that of a concubine, because she is unable to leave because of her economic dependency on her partner.
In conclusion, the current law is out of step with society and produces very unfair consequences.
It is great privilege to support the early-day motion tabled by the hon. Lady. She makes a powerful case. Will she briefly deal with a point that is often made against her, and, by implication, me, which I believe to be invalid? It is that in some sense, correcting the balance here to protect people who would otherwise be unfairly vulnerable entails a discrimination against or an attack on marriage. It does nothing of the kind. It seeks to redress disadvantage. Marriage is a strong institution, and it can survive on the basis of that strength.
In asking the question, the hon. Gentleman makes the point eloquently. He is correct that there have been challenges from the Roman Catholic Church which relate to the institution of marriage. The evidence from other countries that I have cited shows no discernable trends on marriage rates, and we must also examine social change and the way that people choose, or choose not, to marry. The inverse of that argument is to say, “If people want economic protection, they should get married”. That is the wrong reason for getting married, but it is the logical consequence of such an argument.
We must adapt and update the law so that it catches up with how people live their lives. It must also be about people who are effectively left totally destitute, not just homeless. In some cases, they leave the town in which they have been living, the community that they have known and the support structure provided by the cohabitee’s family. It is catastrophic to have no money and to be in that situation.
The situation also puts a huge strain on social housing because there is an increased demand for homes. I know of another case in which a woman—a cohabitee— with four children left her abusive partner. He was left with the four-bedroomed council house that they lived in together and she presented as homeless to the council, which had to find another four-bedroomed house for her and her four children. The council allowed him to remain in that family home, despite the fact that he had committed violent crime against his partner. However, we are not here to discuss domestic violence, so I shall bring my comments to a conclusion.
It is not fair that my constituent is sleeping on a friend’s sofa despite her having contributed to a family home for more than 14 years. Why is the law not protecting such people? It simply must adapt and catch up with the way in which people choose to live their lives in the 21st century.
Like the hon. Member for Buckingham (John Bercow), I thank my hon. Friend the Member for Wakefield (Mary Creagh) for her early-day motion. As she said, it has attracted a large number of signatures from all parts of the House. I also congratulate her on introducing the debate. As I listened to her doing so, I found it scarcely possible to believe that she has been in this House only since 2005, because she brings to our attention examples of injustice and unfairness, and problems from her constituency that point to a wider issue. She brings those things together with her commitment to social justice, fairness and the protection of children. That is exactly what we should be focusing on both in this debate and when we look to change the law.
Generally speaking, it is not the business of the Government or the state to interfere with people’s property rights or to tell people how they should live their lives. As my hon. Friend’s example of her constituent’s situation shows, there is a requirement—a public policy imperative—to tackle the problem because the current situation results in unfairness and hardship and, in particular, causes problems for young children.
The first point that my hon. Friend made, with which I strongly agree, was that family relationships are changing. Not having protection for cohabiting couples who subsequently separate has not stopped people cohabiting; nor has it encouraged people to marry rather than cohabit. The relentless trend is for an increase in cohabitation and in the number of children who are born in cohabiting relationships rather than married ones. We must address the situation as it is, because even without that protection, more people are cohabiting and fewer people are marrying.
I discovered that the Government Actuary’s Department, which likes to look ahead in such things, has managed to predict the figures for up to 2031. It predicts that by then there will be 3.8 million cohabiting couples and fewer than 10 million married ones. So cohabiting couples will constitute more than a third of the total. It is a growing trend.
As my hon. Friend said, the problem is that people do not realise that there is no such thing as common law marriage. It is amazing that it is not what it purports to be, and has not been for ages, but is still somehow rooted in the public mind. I think that that is because of the name “common law marriage”; if someone can describe themselves as a common law wife, they must think that some rights go along with it.
The Department for Constitutional Affairs has introduced an awareness campaign about living together to try to tell people what their rights are—or what their rights are not—when they are cohabiting. We must do more than that because, whatever we do to make people aware of their lack of rights, they do live together and will continue to choose to live together instead of getting married. We must consider the public policy imperative to make the situation fair and, in particular, to protect children when a relationship breaks down.
As my hon. Friend said, what might happen typically is that the woman gives up her job when she has children. She stays at home to look after them, thereby enabling the man to go out to work, to keep his income going and to pay the mortgage while she is looking after the children. At the end of the relationship—this is the greatest unfairness—he has the house and his work, and she is left with no job, with responsibility for the children and with no rights in the property.
We have asked the Law Commission to consider how to solve the problem. It has produced a consultation document and will produce its final report next year. It is a commitment of the Government to protect children and to ensure fairness, so we shall take the matter forward. My hon. Friend has provided us with an important prompt to continue to focus on the subject.
The traditional common law living arrangements are those in the Mr. and Mrs. Burns case, in which a woman changed her name and the couple lived, to all intents and purposes, as if there were married. It used to be that the man was still married and could not get a divorce, so the couple lived together. The patterns are slightly different now, but the problems remain the same, so legislation is required, as well as more research.
In anticipation of the Law Commission’s report, I am prompted by the debate to discuss with my fellow Ministers in the Department for Work and Pensions and the Department for Education and Skills, including my right hon. Friend the Minister for Children and Families, whether we need more research on the current pattern of cohabitation and whether it is causing further problems, so that we have an up-to-date picture of the facts and can show, on the basis of research, the nature of the problem so that we proceed to win support throughout the House for proposals to change the law.
I thank my hon. Friend for bringing the debate to the Chamber and look forward to working with her, the hon. Member for Buckingham and hon. Members on both sides of the House in taking the matter forward.