Divorce

Baroness Meacher Excerpts

Monday 18th October 2010 Lords Chamber

[Baroness Meacher]

My Lords, I rise to give strong support to the case for reform so well presented by my noble friend Lady Deech. For the past 20 years or more I, and no doubt pretty much everyone I know, have watched friends, colleagues and relatives go through the divorce process, spending tens of thousands of pounds and more on legal fees and ending up with a settlement that seemed grossly unfair to one side or the other. The law on divorce, now 40 years old, was drafted when women typically remained at home to look after the children for many years and when the male parent had overwhelming power over the financial resources of the family. I ran the campaign for the Child Poverty Action Group in 1971 as part of a national debate that resulted in the establishment of child benefit. At that time I received more than 2,000 letters from women of all social classes, including the wives of doctors and vicars—the most extraordinary people, I have to say; I was very surprised by those letters—and many others who told me that the family allowance, as it was then, was the only money on which they could completely rely. No wonder that the divorce law passed in 1973 was based on the assumption that women were the helpless victims.

The world today is very different. It is now assumed that women work. The welfare benefits legislation passed this year assumes that mothers on benefits begin planning their return to work when their youngest baby reaches the age of one. Work-related interviews, followed by work-related activities, all prepare mothers for the world of work as soon as they can turn around after the birth of a child. I and other noble Lords argued at the time that for all sorts of reasons—the ill health of young children, disability and so on—the legislation expected mothers to return to work too soon. I still hold to that view. From the point of view of this debate, the essential point is that the benefits regime makes clear that our British state no longer expects mothers to remain at home once children are settled even in nursery.

As the noble Baroness, Lady Deech, explained so well, Europe and Scotland now have divorce laws fit for the 21st century. These laws are based on some very important principles. Probably the most important point is that the principles should be clearly elaborated and established so that both sides in a marriage, right from the start, can anticipate what a divorce would mean for them. The fair point has been made that there are young women today who literally see that the best thing to do is to marry a very rich man. Those women will undoubtedly end up in a divorce court.

In my view, the principles should include the principle that only the property acquired during the marriage should be divided and that inherited wealth should not be included, as the noble Baroness, Lady Deech, has said. Future earning streams should not be taken for granted; lifetime awards are unfair and unacceptable and, in my experience, have led to men, fathers, living in tiny bedsits while they fund the home of their ex-wife. This cannot be right. That both men and women have earning power is an essential assumption that should lie behind these laws. This assumption lies behind the case for time-limited awards. As has already been mentioned, Scottish awards are for three years. Any award should support the family at least until a child reaches and is settled in school. However, that is very different from a lifetime award. Both men and women can be assumed to earn when a child is settled in school. I feel very strongly that the conduct of the parties will continue not to be taken into account. This is essential to avoid the evils of allegations and counter-allegations forming the basis of lengthy and sordid court hearings.

I welcome the plans to overhaul family justice and to move to a system where divorce will be substantially resolved through mediation or, in more complex cases, through “court-lite” shorter and simpler hearings. The drive to reduce the £1.6 billion cost of the family justice system will undoubtedly drive reform. I appeal to the Minister to press for a reform of the law on financial provision in divorce at the same time as the reform of divorce proceedings.

Finally, on the matter of prenuptial agreements, which again has already been mentioned, the Appeal Court judges made plain their view that the existing law under which prenuptial agreements are not enforceable is patronising and outdated. This country surely must come into line with Europe in providing for prenuptial agreements to be enforceable. I would be grateful for the Minister’s views on the need for reform of the law on financial provision in divorce, and on the particular point on prenuptial agreements.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I thank the noble Baroness, Lady Deech, for initiating the debate. The fact that she has done so is fully justified by the quality of the contributions. I start at the end, as it were, by responding to the noble Lord, Lord Bach. I am well aware of his work and concern in this area. I do not think that there is any break in the approach as between the two Governments. We shall build on what the noble Lord did under the previous Government. He has already reflected on there being no silver bullets or quick-fix solutions to this matter and said that it has to be thought through, listening carefully to experience and advice on all sides. As he rightly said, we are dealing with extremely complex financial and emotional issues.

As the noble Lord knows, the justice review to which he referred is conducted by an independent panel chaired by David Norgrove. It will publish an interim report in the spring of 2011, when we will get the first impact of its thinking. The Government will await the outcome of the family justice review before making any firm decisions on comprehensive divorce law reform. However, dissatisfaction and complaints have emerged from all sides in this debate, from those who have gone through divorce and from divorce practitioners. I was not shocked by the speech of the noble Baroness, Lady Deech, as I had seen the letter that she had sent to colleagues, in which she outlined her approach to these matters. I certainly do not consider her views idiosyncratic. I would be a brave man to do so in any circumstances, but particularly so as regards the field we are discussing.

As the noble Lord, Lord Bach, said, we live in an age when there are many divorces. The timely intervention of the right reverend Prelate the Bishop of Blackburn and the contribution of the noble Baroness, Lady Murphy, were right. In all but a few cases, we enter marriage in the belief that it is for life. When it sometimes does not end up like that, it is very traumatic. I am not sure that we are all like the girls in a Manchester school who, when asked in a recent television survey, said that their ambition in life was to marry a footballer as a way to fame and fortune. The implication was that a marriage in those circumstances would be fairly short. However, the right reverend Prelate’s speech resonated for most people in terms of a moral approach to marriage—a determination to try and make it work. The law’s job when breakdown occurs is to try and help as much as it can in ensuring a civilised break.

I listened to the noble Baronesses, Lady Deech and Lady Meacher, and I agree that the independence of women has recently increased enormously. However, I am still not sure that the balance in divorce cases is quite as equal as they imply. As the noble Baroness, Lady Murphy, implied, it can often be unequally weighted against the woman in terms of being able to maintain standards or build a career after divorce. As we know too well from some of our crime statistics, far too many women in this country have to manage dysfunctional families long after the male has gone.

[Baroness Meacher]

My Lords—

[Lord McNally]

I thought that I might have provoked the noble Baroness.

[Baroness Meacher]

My Lords, I am responding to the noble Lord’s indication that we were implying somehow that the positions of men and women are equal. My concern—and perhaps that of my noble friend Lady Deech, though I should not speak for her—is simply that things have changed a great deal in the past 40 years, and the law was written at a time when the position of women was very different from what it is today. Situations vary. There are occasions when the woman is the all-powerful and rich earner, and others when it is the man. All situations have to be judged on their merits. I did not want the Minister to take that as a suggestion of equality.

[Lord McNally]

I fully understand and accept that. Things have changed a great deal in the past 40 years, but a lot of things have stayed the same. We have to take both realities into account. In terms of divorce, the lower down the social scale—if that is the right description—the less things have changed. I can quite imagine that the qualified professional woman is able to re-establish herself very quickly. The woman who has been holding a family together but is very much dependent on a male breadwinner is in a very much different situation. I just make the point that when we are looking at reform, we have to ensure, as our system does, that judges consider three principles—need, compensation and sharing, shaped by the overarching requirement for fairness. Each party is entitled to an equal share of the assets of the partnership unless there is good reason to the contrary, but the yardstick of equality is to be used as an aid, not as a rule. Any decision will be based on individual circumstances and needs. The court does not impose a one-size-fits-all solution. Consideration will be given to the potential earning capacity of both parties. Spousal maintenance orders can be conditional and time-limited, ending in any case if the recipient marries again. One-third of divorced couples make an application for ancillary relief, but a large majority of them seek simply a consent order.

Mention was made by, among others, the noble Lord, Lord Grantchester, and the noble Baroness, Lady Deech, of prenups. We await with interest Wednesday’s ruling of the Supreme Court in Granatino v Radmacher. At present, the courts can take into account prenuptial agreements as part of the balancing exercise that judges must undertake in ancillary relief proceedings under Section 25 of the Matrimonial Causes Act 1973. The judges can still apply discretion—