Prenuptial Agreements

Baroness Butler-Sloss Excerpts

Thursday 27th February 2025 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I too am a patron of the Marriage Foundation and a former family judge who tried a lot of financial cases. I have to say to the noble Baroness, Lady Shackleton, that I am one of two Court of Appeal judges who managed to persuade them that there should be leave to appeal in family cases. But my experience in the past was that Court of Appeal family judges fairly regularly disagreed with High Court judges. So it is not a question of marking your own work: you are marking the work of somebody else in the same subject—therefore, with a great deal of experience.

I am very much in support of the idea of prenups becoming part of legislation. I am delighted that the noble Baroness, Lady Deech, has brought this debate. It is useful that we discuss this, and I hope it will put some degree of pressure on the Government to start thinking seriously about doing something useful. I entirely agree with the suggestion that there is no reason why this relatively simple part could not become part of the law without waiting for a much more complex situation in relation to the rest of family financial affairs—which, as has already been said, can be very complicated.

However, I have two concerns. I respectfully disagree with the right reverend Prelate on the idea that there should not be legislation, but he has made a significant point. There are two issues about which I would be concerned if prenups became part of the law without a degree of discretion for the court. Perhaps, as a judge, I have more faith in the judiciary than either of the noble Baronesses, Lady Deech and Lady Shackleton: that does not entirely surprise me.

The two issues are these. The first is the point so well made by the right reverend Prelate: when the agreement is made, there has to be transparency. You have to put on the table what you have and what you do not have because, from cases I have tried, I know that debts can be as important as assets. Before you enter an agreement, you need to know the state of affairs of both the intending spouses. If one side does not come clean, and it becomes obvious on divorce that there has been non-disclosure and a serious lack of transparency—I am talking not about £10,000 but about millions—or, in a family that does not have much money, that one has money stowed away somewhere that has only just come to light, in such a situation, the judge must have a discretion to put the matter right.

I do not see that discretion being applied in a case where the judge is satisfied that the prenup was entered into with both sides understanding what they were going into and with sufficient transparency for it to be fair at the moment of the agreement. As has been said, it is a contract, but it has to be a contract that can be put right by the judge in extremely unfair circumstances if one of the two spouses has not played fair. So I am looking not at fairness generally but at fairness in a lack of transparency.

The second point that I am concerned about comes at the moment of divorce, or generally just after. There are circumstances which change dramatically: that was my experience when I tried cases. A couple starts marriage in a particular situation and, at the point of divorce, one of the spouses has an extreme change of circumstance. I am looking at illness. You may have a prenup that says that both of them have jobs with relatively equal incomes and neither of them has much in the way of assets, but then you get to a point, 30 or 40 years later, when one of them has multiple sclerosis and is unable to work. At that moment, are you to say that the prenup should apply to the wife, or indeed to the husband—because there is no shortage of wives who earn as much, more or even much more than their husbands? I happen to be one of those.

I can see a situation in which my husband and I made an agreement, when we both started at the Bar with relatively similar incomes, and then I made much more money and became a senior judge and he got a serious illness and could not work. Would it be fair that he should not get a penny because that is what we agreed at the moment of marriage? In my view, there has to be some possibility for this to be looked at. I also look at another situation: if a couple had had reasonable assets when they married but then one of them went bankrupt. There are extreme situations.

I am asking that the judge have a residual discretion to deal with those two instances: the moment of going into the agreement, and the moment when the agreement comes into force. I therefore do not entirely agree with the noble Baronesses, Lady Deech, or indeed the noble Baroness, Lady Shackleton, in wanting a prenup never to be changed. But I do see the idea that for the majority of people who enter into such a prenup, that should be the beginning and end of what their financial affairs should be.

Data (Use and Access) Bill [HL]

Baroness Butler-Sloss Excerpts

3rd reading
Wednesday 5th February 2025 Lords Chamber

[Lord Phillips of Worth Matravers (CB)]

I simply want to endorse, but not repeat, the propositions of law advanced by the noble Lord, Lord Pannick.

[Baroness Butler-Sloss (CB)]

I will do exactly the same. It is extremely important that magistrates should have the power to imprison as well as to fine.

[Baroness Kidron (CB)]

I have spoken to these amendments at every stage of the Bill. One of the unfortunate outcomes of being a campaigner for online safety is the abuse that we get directly from people who do not want the online world to be safe. That abuse comes in all forms, including that which the noble Baroness is trying to criminalise. I say to the House that we must support the noble Baroness. I am so disappointed that the Government are not here with us. Support the noble Baroness.

--- Later in debate ---

We support the creation of this new criminal offence. In many other aspects of law, we are looking at how to combat this evil developing in the online world, but the approach we have outlined is the best one, and I urge noble Lords not to support the noble Baroness in Amendments 5 and 6.

[Baroness Butler-Sloss (CB)]

Before the noble Lord sits down, may I ask him about the aspect of deterrent? You may have someone—or a company—who is inordinately rich, or someone who is extremely poor, for whom, as he knows, a fine will not work because they do not have any money. There will be instances where a fine would not do but the deterrent would be the possibility of prison.

[Lord Ponsonby of Shulbrede (Lab)]

The noble and learned Baroness makes a fair point. In practice, this offence is very likely to be charged with the threat to share and other offences, which are of course imprisonable in their own right. As I said, there is no limitation to the number of offences that can be charged. We think it more appropriate that this be a fine-only offence, given the plethora of other offences which can be charged in this field.

Legal Aid: Social Welfare and Family Law

Baroness Butler-Sloss Excerpts

Monday 18th November 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Viscount for that question. As he will be aware, the department is going through an allocation process as a result of the recent Budget. The question of sitting hours and days will be looked at as part of that allocation review. He raised the question of an intermediate court, which I think was in the Auld report. That is being looked at, but a number of questions arise from that suggestion, which was made more than 20 years ago. I can say to the noble Viscount that it is something that is being considered.

[Baroness Butler-Sloss (CB)]

My Lords, as the Minister will know from his past life, many unrepresented litigants appear before family judges and magistrates without any legal advice. Very often, there have to be adjournments because the facts are not available because the parties are so in dispute they cannot give an accurate account. Does the Minister agree that this is not only a waste of court time but a waste of money? Early legal advice in family cases would save a great deal of money.

[Lord Ponsonby of Shulbrede (Lab)]

Of course, I am sympathetic to the point the noble and learned Baroness makes. As she said, I have substantial experience of dealing with litigants in person in family courts. The debate about early legal advice is also being considered as part of the allocation arrangements as a result of the Budget, but I am sympathetic to the point she makes.

Sentencing Review and Prison Capacity

Baroness Butler-Sloss Excerpts

Wednesday 23rd October 2024 Lords Chamber

[Lord Timpson (Lab)]

I thank the noble Lord for the question. While the review will evaluate the sentencing framework and examine the experiences of all offenders, it will be guided by the evidence of what works to keep the public safe and to rehabilitate offenders. I am focused on the evidence of what works both here and abroad. Currently, judges and sentences already take into account the individual circumstances of each case to account for the culpability of the offender, male or female, and the harm they caused, or intended to cause and any aggravating or mitigating factors.

There are three facts that I am sue the noble Lord will know: female offenders make up only 4% of the prison population; over two-thirds of them are in prison for a non-violent offence; and 55% of women in prison have dependent children. What noble Lords may not know is that the average life expectancy for someone who is not in prison in this country is 82; if you are a man in prison, it is 56; if you are a woman in prison, it is 47. So, we clearly have a lot of work to do to support these very vulnerable and often ill people.

[Baroness Butler-Sloss (CB)]

My Lords, since so many repeat prisoners have drink and drug addictions, are the Government looking at residential establishments outside prison with a probation order, where, if they do not obey at the residential place, they would then go to prison?

[Lord Timpson (Lab)]

The noble and learned Baroness is correct that drugs and alcohol is a massive problem for people in prison and leaving prison. With 49% of prisoners having drug misuse problems, it is not surprising that in prisons there is a demand for drugs. But when people are out, we need to do all we can to help them overcome their addiction problems because otherwise they are far more likely to be recalled and to offend again. So, I am fan of drug-free wings in prisons and of all the excellent support mechanisms already out there. Residential support centres for women are of far more interest for me in the future, and there are a couple of examples that are already starting to work very well.

Prison Capacity

Baroness Butler-Sloss Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Timpson (Lab)]

I thank my noble friend for the question. It is crucial that people leaving prison have somewhere to live. Having been in this space for a number of years, I have met too many people who have left prison—I have seen them outside the gate—and there is no one to meet them, they have nowhere to live and nowhere to stay that night. It is not surprising that the revolving door often means they come back in. I will take my noble friend’s questions away and get back to him. I know we are meeting very soon.

[Baroness Butler-Sloss (CB)]

I also welcome the noble Lord to his post. He said that the Probation Service is overworked, so what will the Government do to help it immediately to deal with the 40% situation coming in September?

[Lord Timpson (Lab)]

Recruiting 1,000 extra probation officers will take time. From conversations with the probation officers that I have recently met, I know that we are asking a lot of them, but they are confident that they can manage the influx of offenders in September and October safely. In the longer term, they need the extra colleagues and a system that is more stable.