Contribution
My Lords, I begin by joining all other noble Lords in thanking the noble Baroness, Lady Deech, for securing this debate. The noble Baroness has, as other noble Lords have said, been unceasing in championing reform in this area, and I was very grateful to her for meeting me before the debate so that I could be sure I understood the issues she was going to raise. I also thank the Law Commission for the scoping report which has formed the basis for today’s debate, and indeed for its wider contribution to law reform.
As the noble Baroness, Lady Deech, and other noble Lords said, she and others have long campaigned for a change in the current law, because they are of the view that there is not enough certainty about it. The reasons are that it leaves too much to judicial discretion, and, because most of the principles are contained in case law, it is very difficult for couples to understand without consulting a lawyer. It was in this context that the previous Government asked the Law Commission to review financial remedies law, examining whether the current framework in England and Wales delivers fair and consistent results.
The report identifies not merely technical issues but matters that affect real families, often at times of great vulnerability and distress. Its conclusions go to the heart of the family justice system: namely, is the system fair, and can we and our fellow citizens have confidence in it? The Law Commission’s verdict is clear: the existing law lacks cohesion and fails to give parties the certainty they need. That is of course a troubling conclusion for any Government to absorb. I was particularly struck by its finding that the law can sometimes not only fail to resolve disputes but may even actively encourage continued conflict. That is a sobering conclusion and it underscores why this debate is timely.
As many noble Lords have made clear, because this was a scoping report, rather than setting out its conclusions, the Law Commission offered four possible models for reform. Each of these offers a different balance between judicial discretion and legal certainty. These have been described in the speeches of others, principally that of the noble Lord, Lord Marks of Henley-on-Thames, and I shall not rehearse them further.
This brings me to the Government’s plans. Your Lordships will be aware of the Government’s manifesto commitment to strengthen the rights and protections for those in cohabiting relationships. Today, over 3.5 million couples live together, more than double the number 30 years ago. One of the reasons why the Government are so concerned about this is that, when such relationships come to an end, women and children are often left without financial security. Many of them do not even realise that they are left financially insecure until it is too late. They do not realise it because there is a widespread myth that the law recognises common-law marriages. In fact, it does no such thing, and the children of such relationships are frequently left unprotected.
Earlier this year, my noble friend Lord Ponsonby confirmed that we will be consulting on cohabitation reform. I repeat that commitment today, but I want to go further, because I have listened carefully to your Lordships’ concerns about uncertainty and conflict in the current system of remedies on divorce. The Government share those concerns and are determined to look more at these issues and address them. I therefore confirm that our consultation will not only consider cohabitation reform but will also explore the challenges identified by the Law Commission in relation to the current law on financial provision on divorce.
I realise that this may disappoint many noble Lords. I particularly bear in mind that the noble Lord, Lord Faulks, gave such a charming and persuasive invitation to me to say exactly today what we are going to do, but I am afraid I am going to have to resist it. Some noble Lords may wonder why we have not simply asked the Law Commission to continue its impressive work, plumped for the one of the options, as the noble Baroness, Lady Deech, suggested, and told the commission to get on with it. However, as has been made clear in this Chamber tonight by the speeches of noble Lords, many of whom have great expertise in this area, there is disagreement even among them as to which option we should be going for.
So the answer is that, when we consult on cohabitation reform, we have a real opportunity to examine the question of break-up and financial remedies in tandem; we are not going to do it piecemeal. Consulting on financial provision alongside cohabitation will bring consistency and fairness across marriage, civil partnerships and cohabitation, recognising that reforms in one area may have implications for the other.