“What I'm concerned with is the art of the possible,” declares Lord Lester QC of Herne Hill of his Civil Partnership Bill, which, should it ever become law, would extend the rights of married couples to couples living in stable and committed relationships. One reason that the Liberal Democrat peer is sounding a pragmatic note is because his radical vision of the future rights of cohabiting couples is not quite as radical as some family law practitioners would want it.
The 'Lester' bill proposes a register of civil partnerships for unmarried couples; if they decide to part by mutual consent, they would have to split the family home and its contents. By contrast, both the Law Society and the Solicitors Family Law Association (SFLA) have favoured an opt-out model of cohabitation rights, which provides blanket rights to all people.
“What I'm doing, I'm doing as a backbench law-maker from the third party, not even the opposition,” Lord Lester, a member of Blackstone Chambers, says. “I'm trying to produce legislation that's made to pass rather than something that's absolutely perfect at dealing with all injustices.”
The silk is waiting to see if his hard-fought bill makes it into next month's Queen's Speech. If it does, he feels confident that his legislation would pass through Parliament “relatively easily”, not least because of the support it received in the House of Lords on its second reading earlier in the year. Normally, peers take a fiercely conservative line on such reforms – the Government's ill-fated Family Law Act being a classic example.
“English law gives full effect to the bond between couples if they're lawfully married, but not if they're unmarried,” Lord Lester argued in the Lords. “Whether people living together are of the same sex or of both sexes, the law treats them much less favourably than married couples, even if they have close and longstanding relationships. Cohabiting partners, unlike married ones, do not enjoy a standard set of legal rights.”
The peer cites the recent case of Anna Homsi, who was the long-term partner of an SAS member killed in Sierra Leone. Because they were not married, Anna was refused a war widow's pension by the Ministry of Defence, and although she eventually received an ex gratia payment, the Government scheme continues to discriminate against unmarried couples.
Lord Lester is particularly pleased, and not a little surprised, that Shadow Home Secretary Oliver Letwin has come out in favour of proposals so far as it relates to gay couples. “It's a bit strange to find a Conservative Party that's being pro-gay and anti-straight on the grounds of protecting the marriage union being undermined,” he says. Lord Lester's bill has been prepared in collaboration with the gay rights group Stonewall.
The peer has decided, for the moment, not to take the bill further so to give the Government the opportunity to conduct an interdepartmental review in relation to civil partnerships and to formulate its position.
But what if ministers pull the plug on his proposals? “Then the bill has to be introduced and I'll press for a select committee in the House of Lords to take evidence and generate as much light and heat as possible to achieve a long-overdue reform,” says Lord Lester. “What I'm seeking to do has been done in advanced democracies across the Commonwealth and Europe and we're lagging well behind.”
So what do the family law experts make of the bill? “It's a step in the right direction, but it doesn't go anywhere near far enough,” says Michael Gouriet, a solicitor at Withers, who is also on the SFLA cohabitation committee. “The whole point of registers is that they're voluntary and it's reliant on those who volunteer to opt in; and the extent to which they register, whether they're same sex or opposite sex, is an unknown factor.”
The legislation will not help the Valerie Burns of this world. It has been 20 years since Burns went to court; she had lived with her husband for almost 19 years, changed her surname to his and was held out to friends as his wife. After their children had grown up she went back to work to provide money for household expenses and purchases. Unfortunately, the couple split up, and when she went to court in the hope of some financial adjustment for the house they had bought, but which was in Mr Burn's sole name, she came back with nothing. “I think that she can justifiably say that fate has not been kind to her,” Lord Justice May said. “In my opinion, however, the remedy for any inequity she may have sustained is a matter for Parliament and not for this court.”
Nigel Shepherd, a partner at Addleshaw Booth & Co and a former SFLA president, also favours the all-embracing opt out model. “Those people who are potentially must vulnerable are those you wouldn't come across opting in,” he says. “The system should apply to all once the threshold criteria are met, and if you don't want it to, you make the conscious decision to opt out. That's the only way to protect the most vulnerable.”
Under the SFLA proposals, cohabitants could apply to the court for financial relief in cases where the parties have been living together for two years, unless there are children, in which case there would be no minimum. The SFLA recommends that the courts make property adjustment orders and short-term financial support available and recommends an opt out provision to provide freedom of choice for cohabitants.
“You have to draw the line as to what you think is a sensible way and the fact that there will be some victims of injustice is the price you pay,” responds Lord Lester. He says that his recommendations of a six-month cohabitation requirement, plus a registration scheme, reduce the possibility of abuse of tax, social security and social welfare laws. “You could go much wider, but when the Law Commission tried to do that, after eight years of naval gazing, it came to the conclusion that it was far too difficult and threw up its hands in despair,” says the peer.
The long-awaited discussion paper from the law reform body on property rights, published this summer, concluded that “further consideration” ought to be given to “the adoption, necessarily by legislation, of new legal approaches to personal relationships outside marriage”. But as for a specific legal framework, it admitted defeat.
“It seems to me better to have an orderly registration scheme where people have to consult their legal advisers and know what their rights are and decide whether to opt for equality or not,” says Lord Lester. “If you don't want to share the spoils of your home you don't have to, but it ought to be worked out by consensual agreement.” The 'Lester' bill allows for the equal sharing of property unless otherwise agreed. Exemptions from capital gains tax and inheritance tax would enable unmarried couples to benefit from social welfare benefits and pensions.
So, what does Lord Lester make of the SFLA and Law Society's own plans? “I don't think what they're proposing is sufficiently worked through and backed to become a bill,” he says. “What's needed now is urgent reforms in which one gets something that is maybe regarded as half a loaf, but it's better than no bread.” Despite the differences of opinion, both the Law Society and the SFLA have given Lord Lester's bill their support.
Not all family law experts are quite so enthusiastic about reform along the Lester or SFLA lines. “What happens to those couples who've lived together for years and have a clear understanding on the basis upon which they do that? Are they going to find themselves trapped in a different position now?” asks Dickinson Dees partner Lyn Rutherford. “My view is that marriage is for a purpose and people who get married know the consequences of that.” He says there are clear legal recourses for people who live together that need tidying up. “I think that it does need a great deal of reform and, having seen the Government's track record on the Child Support Agency and divorce law reform, that's been lousy,” he says.
Gouriet at Withers, like many family law experts, stresses the problems wreaked by the prevailing confusion about what unmarried couples are entitled to. “People just aren't aware of their rights and they think that they're a common law spouse if they've been living with someone for six months or two years,” he says. “There's no such thing and there hasn't been since 1753, but the myth is perpetuated somehow. That's why informed debate is needed now, and Lord Lester's bill will assist with that.”
Other critics would argue that civil partnerships would pose a threat to the institution of marriage, but Lord Lester says that such a view is “completely misconceived”. He adds: “Marriage has been undermined by social behaviour. Over the last 40 years it has been in decline and we have the highest divorce rate in Europe and the lowest marriage rate since 1917. I would hope that the Civil Partnership Bill, far from undermining marriage, would promote stable, enduring relationships that could be crowned by marriage for those that want.” n