Divorce (Financial Provision) Bill [HL]

Baroness Deech Excerpts

2nd reading (Hansard): House of Lords
Friday 27th January 2017 Lords Chamber

Moved by

[Baroness Deech]

That the Bill be read a second time.

[Baroness Deech (CB)]

My Lords, this is not the first time that this Bill has been before you, and I assure you that it will not be the last, for it or something similar, for there is a moral, legal and practical imperative for the Government to do something about this area of the law. Unlike the current law, which is widely disliked, criticised and out of date, this Bill would, above all, improve the lot of every child whose future needs are jeopardised by the waste of parental assets in fighting over money.

There has been much publicity recently about the alleged advantages of so-called no-fault divorce, but bitterness and mud-slinging cannot be eradicated from divorce. Mediation and reasonableness can be achieved only when the far more antagonistic and inflammatory law of financial provision and asset splitting is cleaned up. This is what the Bill will do. It is more urgent than ever because legal aid has been removed from this area of the law and there is no prospect of its restoration. Judges and self-representing litigants complain. The judges complain that they have to do the work of lawyers for the couple appearing before them without advocates and with little idea of the law, dragging out hearing times. The ex-spouses complain because they are thrown into a situation where there is no signpost to a fair outcome, at the most stressful time of their lives. They are expected to mediate and negotiate without any pointers. The Law Commission, which has called for reform, compared the current adjudications on maintenance to a bus driver who has been told to drive a bus but not been told where it is going.

The law has been developed by the judges over the last 40 years, almost as if the guiding statutory provision in the Matrimonial Causes Act 1973 did not exist. In all this time, it has not been thoroughly debated in Parliament, despite the enormous changes in society with same-sex marriage, women reaching equality in work and education, and profoundly different attitudes to divorce and the family. The judges have scrambled to keep up. They have tried manfully to do so, but the result of their swerving from one principle to another, as they carve up assets and income, has been to leave lawyers and divorcing couples less and less able to predict what might be a proper outcome for them. Stories abound about the different views of judges in different parts of the country. Their attitudes may well have been shaped in a different era and according to their own views of their marital roles.

The law that seeps through to the public and into the textbooks inevitably arises from big-money cases that go to the highest courts. These pontifications are not necessarily helpful to low-income families. I am not alone in blushing at the media stories of the divorcing wives of oligarchs who claim, and are awarded, for their alleged needs sums from their husbands such as £2.1 million per annum on travel; £83,000 per annum on cocktail dresses—a sum that would provide 19.7 million water purification tablets for Africa—and £39,000 per annum on watches, which is equivalent to funding a month’s food for 1,695 malnourished children. Meanwhile, the ex-wives of low-income husbands have to struggle along as best they can. This is one of the reasons why the consideration of needs, as the Government will no doubt call for, is regressive and subjective.

This area of law desperately needs public and parliamentary input. Go to any of the blogs about this and see the misery of couples who have spent a fortune on settling and do not understand why their sense of fairness is disregarded. Read the many reports that have tried to reform this area, and you uncover an area of misery, wasteful expense and incomprehension.

The Law Commission reported on this area and backed prenuptial agreements. It said that after a few more years of work, it might end up with a formulaic system for the division of assets on divorce. In the meantime, the Family Justice Council has issued guidance running to 64 pages. The council is a group of family law professionals, not judges or members of the public. Its guidance is opaque and not binding, and it brings into question the role of Parliament. How can it be right in a democracy to leave guidance to unelected, non-judicial people who should be applying the law, not making it? What a statement it amounts to, in relation to the unsatisfactory condition of the law, that Parliament has apparently thrown up its hands in despair. Each year 100,000 children and twice as many adults are adversely affected by this. They call on the Government to do something. The current law has a reputation for putting people off getting married because it is so arbitrary.

At the crux of the issue is the value of judicial discretion in every case versus plain rules, as contained in the Bill. Our divorce judges are doing their best with care, generosity and sensitivity, but the result is uncertainty, expense and unpredictability. The rule of law demands that the law be predictable and certain, all the more so when the Government have removed the prop of legal aid.

A couple of prominent family judges will no doubt say they are opposed to reforming the law to bring in clear and understandable firm rules, but they are the ones whose intricate judgments have aggravated what is already obsolete. Their preference for individual tailor-made solutions is unaffordable. Judicial objections amount to saying that there should be no Marks & Spencer because we all look better in a Savile Row suit tailored in the latest style. A senior judge wrote recently to warn of what he called,

“the crude and amateurish reform of the delicately calibrated law of financial provision following divorce, which is currently attracting some support in the House of Lords”.

That is a very narcissistic comment. It is Parliament’s job to make policy in the interests of the entire country. It is the judges’ job to apply it, not to determine the legislation. That is a reminder of the separation of powers. There are also a few solicitors with a vested interest in no reform because their task of leading couples through the maze of the existing law is very well paid. Happily, the vastly experienced, outstanding family lawyer, the noble Baroness, Lady Shackleton, who is unable to be in her place this afternoon, is on side and wishes me to emphasise her wholehearted support.

What does the Bill say? It will provide that prenuptial agreements about what might happen to a couple’s money on divorce and how needs arising from the marriage might be met will be binding, subject to the usual contractual rules. At the moment, we have the worst of both worlds. Judges have said that prenups can be binding, but they have applied so many conditions to their validity that couples now spend hundreds of thousands of pounds litigating over whether the prenup is binding, which defeats the purpose. Prenups will not undermine marriage. Those countries which have binding prenups have lower divorce rates than ours. Many a widowed or divorced older person has told me that they would like to marry their companion but fear to do so because if the second marriage ends in death or divorce, the assets from the first marriage which they wish to hand down to their children would end up in the ownership of the second spouse. Binding prenups would give them peace of mind and could also deal with the vexed issue of maintenance.

The substance of the Bill is this: it adopts a system which prevails in most of Europe, the US, and especially our neighbour, Scotland, called the division of post-marital assets. The presumption would be that a fair starting point is the equal division of all the property and pensions acquired by the couple after marriage. Assets owned before marriage, inheritances and gifts would remain in the possession of the owner and not be available for transfer. Thus in a short marriage there would be little to divide but in a long marriage, where the couple started with nothing, everything would be divisible. There is flexibility in the Bill to allow for the home to be retained for the use of, say, a mother with children still in education.

Fortunately, a few months ago a university researcher’s review was published of the Scottish law on which this Bill is very closely modelled and which has been in operation for 30 years. The Scottish law was given the highest praise. The report was called Built to Last and its conclusion was that not a word of the Scottish law should be changed and that it had been,

“successful in achieving one of its aims which was to encourage parties to reach their own agreements about the financial and property consequences of divorce”.

The report quotes an interviewee as saying:

“English law is broken and needs mending: but ours doesn’t … generally speaking, it’s a gem”.


This is the gem the Bill puts before your Lordships and which the public deserve and need. Nor has there been a problem in Scotland with more divorced wives claiming state benefits: claims for ongoing maintenance are diminishing in England and Wales year by year and are nothing but an ongoing source of trouble.

Many noble Lords who are unable to be here this afternoon but are in support, such as the noble and learned Lord, Lord Mackay of Clashfern, say: “Why do the Government not get on with it? The Bill is so obviously sensible and sooner or later, it will be the law”. I can only hazard a guess that successive Governments are scared of what they see as moral issues—although this law is more practical than moral.

Women want reform, for there is a growing number of wives who are better off than their husbands and resent, even more than men do, having to give what they see as a disproportionate amount of their hard-earned assets to the man who left them. The public desperately want new, clear law. Most people prefer the certainty of misery to the misery of uncertainty.

My proposed law combines autonomy with fairness. It will give divorcing wives entitlement and end the practice of treating them as supplicants for a discretionary allocation. It will protect the family business and the working wife. It has the potential to save millions in litigation costs. It will provide a good starting point for mediation and negotiation. It will restore some dignity, clarity and reasonableness to family law. The proposals are firmly based in the successful laws of other countries and on the reports of reform organisations here.

Divorce means divorce. The Bill will provide couples with a White Paper for a fair deal and a smooth transition to a single life. No more negotiations without a plan; no more hard exits. Will the Government recognise the problems and take action? I beg to move.

--- Later in debate ---

[Baroness Deech]

My Lords, I thank everyone who has stayed here on Friday afternoon to support the Bill, particularly the noble and learned Lord, Lord Walker, who has helped me throughout this very long process. I assure noble Lords, particularly the Minister and the noble Lord, Lord Kirkhope, that children do, indeed, have priority in the Bill. There is nothing in it to change the existing law about children. Indeed, I wish as much attention were paid to extracting maintenance from unwilling fathers as is paid to other elements of family law. We have a very bad track record there. This law would not change it; indeed, it would extend the age up to which you have to house your children to 21 rather than 18, given that so many of our children are at university until that age. It allows for a house to be retained for the housing of children where this is necessary.

Secondly, the law I am putting forward is by no means experimental. It has been acted on with great success in Scotland for 30 years. There is nothing more that needs to be learned about it. I suspect that the Government are fearful of an increase in ex-wives going on welfare. This has not actually happened in other countries.

If the Government really want to tackle the problem of the damage and cost of family breakdown, which is the price we pay for the pursuit of liberty and happiness, we could cut the cost by making better efforts to extract child support from fathers and investing in affordable childcare to help women back into work. As it is, although I am very pleased that the Government are taking this seriously and are making some moves, the Minister’s reply speaks only of applying sticking plasters to an ill patient who is bed-blocking, who really needs be cured and booted out. The principles underlying the old law remain but they are not just and mediation is difficult because there is no direction, sense of justice, certainty or feeling of fairness at the end. I think the Minister knows and the House knows that reform will come sooner or later.

Luckily, I have no interest in this. I have never been divorced and I have never earned anything from family law, but I claim a distant relationship to the late Leo Abse MP, who fought for years to reform divorce law and succeeded in the end.

There is one other serious issue I would like to raise. This Government risk becoming a do-nothing Government. It is quite striking that widespread expertise in the three Bills that have been before us today—years of expertise, not just from me as an academic but from the noble Baroness, Lady Cox, the noble Lord, Lord Ramsbotham, and others—has been swept aside. We all say that this House earns its place in the British constitution because it contains expertise and experience. Do the Government not risk undermining the contribution and reputation of this House when not just today but in the Higher Education and Research Bill—with dozens of vice-chancellors and professors and experts—our comments have just been stonewalled? The Government need to listen to this House if they value it and its place in our constitution, which is what we have all said, and yet the expertise is being dismissed by—dare I say it?—ministries that may know less about the topics than the people who have spoken in the various Bills today and this week.

Constitutionally, I do not think that I am able to ask for the Bill to be referred to a Grand Committee. I therefore end by asking the House to give it a Second Reading.

Bill read a second time and committed to Committee of the Whole House.