Divorce (Financial Provision) Bill [HL]

Lord Dykes Excerpts

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

[Lord Dykes (CB)]

My Lords, I must deliberately exercise great care after speeches by three considerable legal experts at the beginning of this debate. I speak very much as a layman—but declaring none the less a personal interest in having experienced divorce proceedings that ended in 2001. I have no complaint, by the way, about the proceedings, which were entirely satisfactory, but I noted even then, when there was a very low degree of contention and a high degree of amicability, the gradually amassing cost of the proceedings because of endless discussions of assets and other matters, which led the lawyers themselves to say that it was about time that we exercised control over the rise in the amounts of money involved. In this case, fortunately, there was no actual hardship or difficulty in those costs—none the less, that is one of the realities of these matters. Again, in the reverse sense, extra costs arise from the arbitrariness of different judges’ deliberations—and I make no criticism of individual judges, as it is a very difficult job for them.

I congratulate the noble Baroness, Lady Deech, on introducing the Bill and wish her well with it. She herself was chairman of the Bar Standards Board from 2009 to 2014, so has considerable knowledge and legal expertise in all matters of law and not just in divorce.

We have reached a crucial stage whereby the haphazard nature of the press reports about proceedings, the huge amounts of money involved, and lots of Sturm und Drang and drama mean that rationalisation and modernisation is long overdue. If you take the rising amounts of money, for all sorts of reasons, with the devastating blow of the removal of legal aid, you have a cocktail of real difficulties, which is unfair on modern society in Britain. I add my expression of support to what the noble Baroness said about the system in Scotland, where they provide a good example of moderate, sensible law-making in comparison, sometimes, with English or British law-making, in quite a variety of fields. But here again, too, the comments of people interviewed on the Scottish law and how it was working were extremely encouraging.

I was grateful for the excellent House of Lords briefing document on this Bill. I note that Resolution, an illustrious body that we often study very closely, commented on this issue, saying:

“Divorce law relating to finances is complex and difficult to understand. Outcomes can be difficult to predict, even for legal professionals. Section 25 of the Matrimonial Causes Act 1973, which determines how money is divided up on divorce, has fundamentally remained unchanged for the last 40 years”.


That is 40 years in a rapidly changing society—I think that that really is unacceptable. I hope that there will be enormous encouragement today, including, I hope, a positive response from the Minister when she comes to reply.

In one paragraph of the excellent briefing document from the sponsors and supporters of the Bill, I note the excellent summary, which describes the Bill and its qualities. It says that if the Bill is enacted, the result should be better opportunities for mediation, less need to go to court, reduced trauma for children—a very important point that the noble Lord, Lord Kirkhope, mentioned lower costs and an easier time for litigants in person and a fairer outcome, recognising partnership in marriage. For the first time, it would recognise equality of spouses, rather than subjecting their claims to the view taken by a judge. Above all, it would be the result of democratic debate in Parliament, and take account of public opinion and the need for certainty in law.

I hope that the noble Baroness, Lady Deech, and other supporters of the Bill in Committee will look closely at Clause 3, and the excellent points that she made on the quality of prenuptial agreements. Subsection (1)(d) needs to be made absolutely watertight in its description to avoid the kind of difficulties there have been in the past.

Over the years we have all heard the music hall jokes about marriage and divorce. I particularly like the very cynical New York joke which I heard some years ago: marriage is like a banquet where you start with the pudding and work backwards. In this case, we need to repair some of the damage in society that has come from divorces—sometimes they are needless, sometimes unavoidable. Sometimes people avoid marriage altogether for all sorts of modern reasons—no one can complain about that. I hope that this time there will be a more positive government response. We go through this rather sad process of knowledgeable Members of this House putting up extra Bills, particularly on Fridays. We then expect the inevitable government reaction that we heard twice today from the noble and learned Lord, Lord Keen of Elie, who was unable to accept any suggestions at all. I hope that the newly-appointed Minister on duty will be more positive in this case.

I first got into the House of Commons years ago. In 1972, although I was a PPS in Edward Heath’s Government, I was still allowed to put forward a Private Member’s Bill because I came number two in the ballot. I introduced a Bill to control and govern the movement and parking of heavy juggernaut lorries which were becoming a menace in Britain at the time. It was pure “Yes Minister”. Right at the beginning, a senior civil servant said that under no circumstances could they even begin to consider such an idiotic and ridiculous Bill. Nine weeks later, the same person phoned me to say: “Now that we have looked at the text again and have our own components to put in to your excellent Bill, we propose to proceed with it”. They did so, and it became the Dykes Act governing the movement of heavy lorries. That was a sweeping change, and I would not expect a drama of that magnitude to take place today. None the less, the Bill deserves the support, not just of the House but of the Government.