Divorce (Financial Provision) Bill [HL]

Debate between Baroness Deech and Baroness Shackleton of Belgravia

Friday 21st November 2014 Lords Chamber

[Baroness Deech]

My Lords, in moving Amendment 7, I will speak to Amendments 8 to 13 as well. What binds them together is that they concern prenuptial and post-nuptial agreements.

First, let me counter criticisms I have heard. Unfortunately, it is no good saying that nobody ever contemplates the end of their marriage. Only too sadly, it is unavoidable to think of it. There cannot be anyone in this House who has not had a member of their family go through divorce—or, indeed, has not been divorced themselves. It is a very current feature of life. I know the arguments that the Bishops might have put forward, had they been here: that having a prenuptial agreement somehow undermines marriage. That is not so. Such agreements are common in every country in Europe and in North America. In all those places the divorce rate is lower than it is here, except possibly in the United States. I do not think it can be argued that they in any way undermine marriage. Moreover, the Supreme Court swept away the public policy issue that there is somehow something wrong with making an agreement about the end of a marriage in the famous case of Granatino v Radmacher, which was unusual in that it was the wife who was very wealthy and the husband, although comfortable, was not quite so wealthy.

First in this group, I took account of what was a glaring omission in the first draft. The prenuptial or post-nuptial agreement must of course be in writing. That is covered by Amendment 7. This was a mere oversight. It follows the recommendation of the Law Commission in its report on matrimonial property agreements and it follows practice abroad. There can be hardly any dissent from that. Amendment 8 is an improved draft: a way of saying that prenuptial and post-nuptial agreements are binding.

Amendment 9 is about disclosure. Obviously, if people are making a prenuptial or post-nuptial agreement they ought to tell each other what their assets are before they sign it. This amendment seeks to deter legal challenges to an agreement if a small or unimportant asset was overlooked and not declared. For example, if a wife omitted to mention in her list of assets her second-hand car kept somewhere else in the country, one would not want the agreement voided for that unimportant failure to disclose. How many of us could at any time make a completely comprehensive and accurate list of everything we own? Therefore, the amendment provides that a failure to disclose will not ruin the prenup or post-nuptial agreement provided that the asset is not of great significance. I have been advised by judges that there is no need to make any fresh statutory rules about disclosure—hence Amendment 12.

Amendment 11 is meant to prevent someone who would not be damaged taking advantage of non-disclosure. Others will give more substantial examples of that. For instance, if a wife failed to disclose her second-hand car, she could not rely on that to destroy the prenuptial agreement so as to give her an advantage. The idea is that, set against a background of clarity in dividing up assets, the court will accept the prenuptial or post-nuptial agreement as binding.

The Supreme Court has already almost worked into that position, but it attached so many conditions in the well known case of Granatino v Radmacher that about a dozen other cases followed where couples argued simply over whether the prenuptial agreement was binding. If they start going to court to argue about that, the very point of the agreement is undermined and costs accumulate.

The provisions in this group of amendments cumulatively will give very strong, although not complete, force to the binding nature of a prenuptial or post-nuptial agreement. Because the normal laws of contract will apply, if there is a mistake, duress or fraud, it will be possible to undermine a prenup. Section 35 of the Matrimonial Causes Act provides, in limited circumstances, a way to attack a post-nuptial agreement, so that is already quite common.

The great advantage of this provision is the encouragement that it will give people to get married. The noble Baroness, Lady Wilcox, who apologises for not being in her place today as she has been called abroad on urgent business, told me enthusiastically about her feelings and those of other Members of this House of riper years who might contemplate a second marriage. People who do so, having once been widowed or divorced, may well say to themselves, “But if I get married again, all the property that I inherited from my first husband or everything I have worked for might, in the event of a second breakdown, go to the second spouse and his family”. I think that most people of a riper age who are thinking of getting remarried would prefer to keep their property for their original family, and the existence of a prenuptial agreement would encourage and help them.

The prenuptial agreement is very common in other countries. Of course, as your Lordships know, there is many a transnational marriage these days. People who were married abroad get divorced here and vice versa. An English person marries someone from abroad who takes it as a matter of course that there should be a prenuptial agreement. Years ago, I had a student at my college in Oxford who got engaged. She came bouncing in to see me and said, “I’m engaged, Mrs Deech. I’m engaged. Who do I go to? Which lawyer do I see about my prenup?”. That was about 20 or 30 years ago, and one can well imagine how my jaw dropped. However, she was Canadian, from Quebec, and that is what they do in Quebec, in France, and in other places. Having decided to get married, the young couple go off and see a lawyer to discuss what they call the “matrimonial regime”, where they talk about what sort of property ownership will apply. It does not undermine their marriages in those countries. As I have said, their divorce rate is lower than ours.

I find it very curious that when the average couple in this country spend £20,000 on arranging a wedding, and spend years doing it—we all know just how complicated these things are—they do not spend just a few pounds on going to see a lawyer to decide who is going to own the property and how things are going to be sorted out. It runs contrary to our nature—or at least it used to. However, I think, and hope, that the noble Baroness, Lady Shackleton, will explain to us that these prenups and post-nups are catching on, because, sadly, none of us can be unaware of how these things can go wrong and what it will cost us. As I said, the Supreme Court has already pretty much worked itself into this position.

Therefore, I very much hope that your Lordships will accept this group of amendments, which will make prenups and post-nups binding against a background of dividing up assets fairly on divorce and will give couples a clue as to what is fair when drawing up a prenup. Alternatively, they might say, “No, I’m not going to draw up a prenup. Don’t you love me? We don’t need a prenup”. I am sorry to say that that would be a bit naive these days but this group of amendments would greatly improve the situation for couples with a foreign element, older couples embarking on a second marriage and couples where there is a great disparity of wealth: the model who marries the footballer, the singer who marries the Russian oligarch and so on. It is perfectly understandable that they might want to discuss how those assets should be owned and divided up. It is too late for me, I am afraid, but not necessary anyway. However, I very much hope that this House and the Government will recognise that that is modern society and that the amendments would greatly help a number of couples. I beg to move.

[Baroness Shackleton of Belgravia]

My Lords, I support the concept behind this pillar of the Bill. It is vital that there is more clarity as to when, why and where prenuptial agreements should be binding. If they are made de rigueur in this country, as they are in other countries, there will not be any romance in it; it will just be like trotting along to get your marriage licence. There will be WH Smith forms and, if the couples do not take legal advice, they will be protected.

There are problems because the current law does not provide for binding prenuptial agreements but there is a lot of travel within the European Community. People come to this country having signed a prenuptial agreement which is not a prenuptial agreement: it is a property regime which, with no legal advice, is translated into a prenuptial agreement in this country, and it causes a lot of problems. If people know in clear terms that those are not going to work, then they will know where they stand. They will know what will work and they can be given appropriate advice before they arrive here if they are intending to come to this country.

My noble friend Lady Wilcox believes that this proposal will positively encourage marriage, and I support that wholeheartedly. Unfortunately, I see a cottage industry in my profession of stepchildren encouraging divorce. It is forced upon a parent so that the parent can, putting it crudely, collect the money before they die because there is no prenuptial agreement. Therefore, divorce is being promoted by stepchildren so that assets on one side of the balance sheet can be collected and they can profit by inheritance. That is ugly. A prenuptial agreement would avoid such circumstances.

Also, second marriages are often broken by stepchildren. If those stepchildren know that their financial security is intact and protected by law, there is every chance that the marriages will survive. Speaking in my other capacity as a patron of the Marriage Foundation, I believe that everything should be done to enhance the prospect of people remaining married. Prenuptial agreements protect people because they know what will happen to them should the ghastly event of divorce happen. It is very important that people get independent legal advice because at the time they get married they are, in my experience, concentrating on the dress, bridesmaids, venue and canapés and not what may go wrong. To have people in love not being properly shown the horrors of divorce is a mistake.

I wholly agree with this measure becoming part of the statute. I was the lawyer for Mr Granatino and it was an ugly shock when the Supreme Court decided to apply contractual measures to something that had hitherto, as part of the Matrimonial Causes Act, not been legally enforceable.