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Volume 490: debated on Wednesday 25 March 2009

Motion for leave to introduce a Bill (Standing Order No. 23)

I beg to move,

That leave be given to bring in a Bill to provide certain protections for persons who live together as a couple or have lived together as a couple; and for connected purposes.

In the summer of 2006, I met a woman in Wakefield who was homeless. My constituent and her 14-year-old daughter were both sleeping on sofas in the living room of a friend’s one-bedroom flat. The woman’s long-term relationship had broken down. She had lived with her male partner for many years, brought up their child, and contributed to all household bills. However, when their relationship broke down, my constituent was entitled to nothing from her ex-partner. She moved out of the family home, to which she was unlikely to be entitled to a share unless she could prove to a court that there was a common intention of joint ownership, either by agreement or by financial contribution to the property. The courts could not consider what might be a fair outcome because she was not married. My constituent and her daughter were left destitute. She had discovered, in the hardest possible way, that there is no such thing as common law marriage. The burden of providing for her and her daughter fell on the state and the taxpayer.

I was delighted to discover at the time that the Law Commission had published a consultation paper on cohabitation in May 2006. It produced its final report in July 2007, which stated:

“The result of the current law’s inadequacy is hardship for many cohabitants on separation, and as a consequence, their children… And in many cases relationship breakdown may lead to reliance on the State in the form of claims to welfare benefits and social housing”.

My right hon. and learned Friend the Leader of the House told the House in October 2006 that legislation would be introduced in 2007 to give new legal rights to the 4 million people who live together. Those rights would also protect their 1.25 million dependent children—children who have no choice about their parents’ living arrangements, but suffer devastating hardship on the breakdown of their parents’ relationship. The old label for those children was illegitimate. Here and now, in the 21st century, they remain literally illegitimate—outside the law. In March 2009, here we are, still awaiting the Government’s proposals.

The case for reform was and remains clear. It is long overdue. In 2004, the General Synod of the Church of England passed a motion, which reaffirmed the centrality of marriage but also

“recognises that there are issues of hardship and vulnerability for people whose relationships are not based on marriage which need to be addressed by the creation of new legal rights.”

There is an appetite for this Bill in both Houses, and the measure is largely based on the Law Commission’s 2007 report. The wise, noble and learned Lord Lester of Herne Hill introduced the Bill in the other place on 13 March. It is supported by Resolution, an association of 5,500 family lawyers. Before publishing it, there was a public consultation, with nearly 200 responses from: the Law Society of England and Wales; the family division of the High Court; the Family Law Bar Association; Families Need Fathers; Refuge, and many other solicitors, academics and individuals. Lord Lester has placed their responses in the Lords Library.

There is also an appetite for the Bill throughout the country. The 2008 British social attitudes survey stated that nearly nine out of 10 people think that a cohabiting partner should have some financial provision if the relationship has been long term and involves children.

Our society has a duty to protect children, whatever family circumstances they find themselves in, but the law as it stands leaves children in poverty when their cohabiting parents’ relationship ends. Today, one in three babies are born outside marriage, compared with just one in 20 in 1963, and 44 per cent. of all children in England and Wales are born to unmarried partners. The proportion of unmarried women who cohabited with a partner trebled between 1979 and 2002, but without a claim on the family home, the mother, who is usually the children’s main carer, becomes homeless. If we are serious about our pledge to end child poverty in this country in the next 10 years, the Bill will have a huge part to play.

However, we need to be clear. The Bill does not give cohabitants the same legal protections as marriage does. Marriage and civil partnership are special and offer specific protections and benefits. The Bill would create a legal framework that applies only on the breakdown of a cohabiting relationship. It may even remove the incentive to cohabit in order to avoid the financial costs of a divorce, which many people do now. The Bill would also allow couples to opt out of those protections to maintain their freedom of choice as individuals.

People meet, they fall in love and they move in together. They may decide not to get married for a variety of reasons. There may be the romantic ideal of true love, and who are we in this place to argue with that? There is the ideological objection to the institution of marriage. People may have left an unhappy marriage and be reluctant to embark on another marriage, whether happy or unhappy, or they may have witnessed their parents’ unhappy marriage and decided, for whatever reason, that marriage is not for them. People may feel too young or be too career minded, or they may be just trying things out with the other person. But they all have one thing in common: rare is the couple who consult a lawyer before they take the step of moving in together.

There is, I have discovered, what sociologists call “optimism bias”, whereby people believe that their love will last for ever—and in some cases, of course, it does. However, it is not surprising that people who are not lawyers should be ignorant of the law or that they may know the law, but allow inertia to creep in. However, the harsh reality is that men and women, whether gay or straight, who live together without a marriage or civil partnership can face devastating poverty and homelessness when their relationship ends.

The Bill would also provide protection for Muslim women who may be married in a religious ceremony abroad, live with their husband in this country for many years and, on the breakdown of the marriage, discover that they were never legally married in this country and that they have no rights whatever.

In July 2007, the Ministry of Justice concluded in its research paper on its “Living together” campaign that

“There is a need for a presumptive scheme giving cohabitants (and particularly cohabitants with children) automatic rights and obligations…This is particularly important for those in uneven relationships or where one partner is less committed than the other.”

The Department also pressed for a more consistent message from the Government and policy makers on the non-existence of common-law marriage, saying:

“Currently, the contrast between the acknowledgement of cohabitation in welfare support systems and the lack of acknowledgement of it in family law is contributing to general confusion about the legal position of cohabitants.”

The Department for Work and Pensions recognises cohabitation when establishing people’s benefit claims. It takes into account the duration of the relationship, the performance of household duties and the degree of mutual commitment. Yet when one partner dies, the cohabitant has no right to a bereavement grant, as they are not treated as the other’s next of kin. Currently, therefore, cohabitants have all the responsibilities but none of the rights that marriage bestows. Other Commonwealth countries, including Australia, New Zealand and Canada, give protections to cohabiting couples without detriment to marriage.

The law as it stands is unfair, uncertain and illogical. It penalises the vulnerable and, in particular, the children of cohabitants. The law does not recognise the choices that people make in the 21st century and it does not promote equality of outcomes for families. The Bill is long overdue, humane and compassionate. It promotes fairness social justice and equality before the law, and I commend it to the House.

Question put and agreed to.


That Mary Creagh, Hilary Armstrong, Liz Blackman, Natascha Engel, Ms Sally Keeble, Fiona Mactaggart, Lynda Waltho, Mr. Andy Slaughter, Dr. Evan Harris, John Bercow and Mr. Gordon Marsden present the Bill.

Mary Creagh accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 3 July and to be printed (Bill 81).