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Baroness David: I should like to support the amendments moved by the noble Earl, Lord Russell. I was a member of the special committee dealing with the Family Homes and Domestic Violence Bill, as were three other people who are here tonight--a small assembly at this time of night--the noble Baroness, Lady Darcy (de Knayth), the noble Lord, Lord Meston, and myself, who were four members of that committee. I am quite sure that the noble and learned Lord cannot deny that we entirely agree that these clauses, as they were before being changed in the other place, were accepted by the Committee. There was no question about their acceptance: I do not think there was any debate about that.

We made changes in the Bill as it came from the Law Commission. Various clauses and an extra schedule were added, but the Bill as it came from the Law Commission was basically accepted, with a few changes. The Committee was very much agreed that it was not changed at Committee or Report stages. There was intensive discussion. We had, as I think the noble and learned Lord, Lord Brightman, said, 83 amendments discussed at various stages of the Bill. It was very thoroughly gone into and accepted. I find it very hard to believe that the noble and learned Lord could really have liked these changes which he accepted.

If we accept the changes now it will show that we are rather an ancient Chamber. A number of questions were raised at earlier stages in the Committee, but what is the message going out from this Chamber? I would say that the message we are sending, if we accept these changes, would be unrealistic. I must be one of the oldest Members of your Lordships' Chamber but I think I can accept that life is very different from what it used to be. There are a great many people in stable relationships--partners, or whatever they are called. I do not like the word, but that is apparently how they are currently referred to. The idea that cohabitees cannot be treated in the same way as married couples is ridiculous.

I hope that the noble and learned Lord will go back to what he apparently believed in for a considerable period during the long days of that Committee and indeed the Report stage and Third Reading. I hope he will think again about these amendments. It would be a very much better message from this Chamber if we go back to the Bill which we approved before it went to the Commons and which the other House misguidedly changed. They did not even get the Bill through: there was no advantage whatsoever in the changes that were made. I should also like to say that I support the amendments standing in the name of my noble friend Lord Irvine, Amendments Nos. 184A to

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184C. I make a plea to the noble and learned Lord that we should get this Bill put back as it was when it left this Chamber.

8.30 p.m.

Baroness Lockwood: I too would like to support this series of amendments. In doing so, I must admit that for personal reasons I was not able to be involved in the previous Bill when it went through this Chamber and so I am coming to this current Bill with a fresh mind, conscious of the controversy which surrounded the withdrawal of the previous Bill.

Like the noble Earl, Lord Russell, I cannot see why Clause 36--the clause that requires the court to take account of the fact that the parties involved in cohabiting have not given each other the commitment involved in marriage--has been inserted into this Bill. The Bill concerns the breakdown of marriage. If a commitment in marriage has been given and then broken, that is surely equally bad, if not worse, than if a commitment had not been given in the first place.

Like my noble friend Lady David, I believe that we are now operating in a society with different values. However, though the values may be different, it does not follow that in all cases they are less valid. In circumstances where two people are cohabiting in good faith, and in particular where the woman may have made the same kind of sacrifice as a married woman--for instance, where children are involved she may have given up her job, thus losing her financial independence--I do not see why those two people should be treated any differently from the two parties in a marriage where the marriage has broken down. It follows therefore that I do not accept the proposals in the Bill whereby cohabitees and partners in marriage should be treated differently.

Much has been said in regard to the "harm" factor. Again, when we are looking at the breakdown of a relationship, we must look at the extent of the harm that is done, whether it is in marriage or in cohabitation. In his summary of the Bill the noble and learned Lord said that, even if the court made an order, that order would be confined to a maximum of one year whereas, under marriage, the order may be extended. But if an order is being made, it is far too rigid to say at the outset that that order will be for one year only. The same flexibility should apply in cohabitation as in marriage.

I hope the noble and learned Lord the Lord Chancellor will think again about the changes he has made in the Bill and look more favourably on the kind of Bill that he was advocating at the end of last year.

Lord Meston: The speech of the noble Lord, Lord Clifford, covered ground which was covered extensively in the course of the consideration of the Family Homes and Domestic Violence Bill during the last Session. So far as the improvements to the existing law are preserved by this Bill, the Committee may have every confidence in them. I simply wish to point out that it is a travesty to suggest that the mere presence in the home of one party to the dissatisfaction of the other party would be a sufficient basis for what is colloquially known as an "ouster" order. Such an order is now, and

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will remain under the new law, a drastic order to be regarded as a matter of last resort by the court. It is inconceivable that the courts will regard it otherwise. Certainly the courts will be astute to look for the sort of unscrupulous misuse of the powers provided by the new law which the noble Lord suggested may arise.

In relation to the remaining alterations to the Family Homes and Domestic Violence Bill which are brought about in this Bill, I do not wish to repeat the points already made. I have one regret in particular; that is, that the procedures of the Married Women's Property Act 1882 for determining property disputes between cohabitants have not been preserved in this Bill. It was commented by Dr. Eekelaar of Oxford University, in an article in Family Law this month, that,


    "It is hard to see how maintaining procedures which benefit only lawyers, even those of the Chancery Bar, help the institution of marriage, but political compromise seldom produces rational results".

Lord Simon of Glaisdale: On Second Reading I ventured to deprecate attempts to amend too violently Part III of the Bill on the ground that it has virtually come through a Jellicoe Committee whose conclusions should be generally accepted. Nevertheless, for reasons that will become clear in a moment, I support the changes proposed by my noble and learned friend.

I turn to the comments of the noble Earl, Lord Russell. I have long felt that what history gained, the law lost. It was an astute insight of his at Second Reading--and he repeated it today--that, looking at the law as a whole, cohabitation has now become a status. "Status", in its legal sense, means a condition of belonging to a class of society to which the law ascribes particular rights and duties; capacitors and incapacitors, the capacitors and incapacitors being the more important because, of course, there are many classes of society which enjoy particular rights--for example, the tenant of an agricultural holding. But, in the legal sense, status goes far beyond that. One looks to see that there is a substantial body differentiating that class of society.

The noble Earl was quite right in saying that, as the social security law has developed, though not that alone, cohabitation should now be recognised as a status. English law is not peculiar in that regard. There are a number of systems of law which differentiate between concubinage differentiated from marriage on the one hand and from the denizens of the red light district on the other. Concubinage is a status in those systems, and I am prepared to concede that cohabitation may now become a status under our legal system.

But where I believe the noble Earl has been uncharacteristically ungenerous is in his criticism of those Members in another place who demurred at some aspects of what is now substantially Part III of the Bill. Their fear was that the Bill in its former form would virtually conflate the status of marriage with the status of concubinage. Several of the speeches this evening have gone a very long way down that road. In the end, we have to decide whether we value marriage as a special status or whether we are willing to see it conflated with concubinage, cohabitation or call it what

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you will. It is because those changes that my noble and learned friends have made seem to me to differentiate the status of marriage from the status of concubinage that I believe they are to be supported.

The Lord Chancellor: I appreciate that Part III of the Bill is in its essential characteristics very like the Family Homes and Domestic Violence Bill in the last Session, in which a number of your Lordships played a most important part in the Jellicoe Committee.

I begin by directing my attention to a point raised by the noble Lord, Lord Clifford of Chudleigh. He suggested that the Family Homes and Domestic Violence Bill had been presented as a consolidation measure and put through a procedure which was appropriate for that purpose. Your Lordships know well that the procedure for consolidation is the Joint Committee on Consolidation Bills. There was no question of that Bill going through any such procedure. It was well appreciated that substantial changes were to be made to the pre-existing law. Your Lordships have only to read my Second Reading speech--for what it is worth--when I introduced the Bill to this House to appreciate that point. If the noble Lord had sat through the discussions in Committee he would have appreciated that even more fully. I believe it is remarkable for it to be claimed that the previous Bill was presented to Parliament as a consolidation Bill. That is not so. Anyone who cares to read the proceedings and the substantial volume of evidence that was received when the Bill was in the Jellicoe Committee will appreciate that.


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