Divorce: Effect on Children

Debate between Lord Faulks and Baroness Deech

Wednesday 26th November 2014 Lords Chamber

[Baroness Deech]

To ask Her Majesty’s Government what is their assessment of the survey findings reported by Resolution on the adverse effects of divorce on children.

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

My Lords, the Government agree with Resolution that parents need to minimise conflict when separating or divorcing to reduce adverse impacts on children. We encourage the use of mediation rather than litigation to resolve disputes about children and finances. Court processes now require consideration of mediation in such cases.

[Baroness Deech (CB)]

Does the Minister appreciate that mediation cannot work if the law is as uncertain as it is, especially now that legal aid has been removed and more than 50% of the money cases involve at least one litigant in person? Will he undertake to do an impact assessment on the removal of legal aid from the family courts, which has resulted in the strain that Resolution has pointed out? Will the Government commit to reforming the law on financial remedies on divorce to save money and remove some of that strain from the families and the children?

[Lord Faulks]

The noble Baroness is, of course, taking through this House her own Private Member’s Bill, which makes various recommendations for giving greater clarity to the arrangements on divorce. The Government are considering that, together with the Law Commission’s report on prenuptial agreements and financial arrangements after divorce. Certainty is of course desirable, but at the same time flexibility may be necessary to deal with difficult cases. The Government have already made it clear that they do not propose to bring forward legislation in this Session. The next Parliament will have an opportunity to consider not only the Law Commission’s thorough consultation but all the good work that the noble Baroness is doing in respect of her Bill.

Divorce (Financial Provision) Bill [HL]

Debate between Lord Faulks and Baroness Deech

Friday 21st November 2014 Lords Chamber

[Baroness Deech]

My Lords, I wish to say simply that of course the noble and learned Lord, Lord Walker, is right—that is why he is learned and I am just a noble Baroness and not learned. However, my point is that this House has not revisited the principles of financial provision on divorce in more than 40 years, despite all the changes in society and all the things that have happened—the changes in the position of women, women going out to work and the rise in divorce. It is really crucial to do so now because of the removal of legal aid and the need to help those who mediate and arbitrate and give them a starting point. The Government favour mediation yet there has been a decrease in the use of mediation. How can people mediate if they do not know what the starting point is? To mediate means to find a middle way, and therefore we need a parameter. That is why we are trying to clarify this law.

[Lord Faulks]

I am sure that all noble Lords realise that what the noble Baroness meant by saying that the 1973 Act had not been revisited was that the approach that was set out in that Act has not been changed since that date. Although there have in fact been a considerable number of amendments to the Act, as the noble and learned Lord, Lord Walker, pointed out, the overall thrust of the noble Baroness’s point remains the same. Amendment 5 moves, in amended form, the list of financial orders in Clause 2 so that they now form the definition of “relevant financial orders” in Clause 1, which deals with interpretation. This amendment goes with the proposal that Clause 2 does not stand part of the Bill, as the provisions for financial orders would as a result be dealt with elsewhere in the Bill.

The Bill as amended will limit the court to making relevant financial orders only to the extent that a binding prenuptial or post-nuptial agreement did not “deal with the matter”, and only in relation to matrimonial property, as defined by the Bill.

--- Later in debate ---

[Lord Faulks]

The noble Lord makes an important point. What I did say was that the Government had not yet concluded how they proposed to respond to the Law Commission’s recommendations. The Law Commission has said that it considers it appropriate to override an agreement in some cases. I take entirely his point that if, as it were, the court is going to have a free rein to override an agreement simply because it thinks it fairer in the circumstances to come to a different conclusion, that would significantly undermine the degree of certainty which can be obtained by a prenuptial agreement. However, at the heart of what the Government will have to decide on this is to respect all the advantages that one can obtain from having a prenuptial agreement for the reasons that have already been outlined in the debate, yet not making it iniquitous in some circumstances—limited circumstances, I would imagine—where it is manifestly unfair for a party to be restricted by the scope of that agreement.

[Baroness Deech]

My Lords, I am sure that the Minister will agree that the best should not be the enemy of what is workable and good going forward. I am also sure that the Minister and I are united in the deep concern I have about the unfortunate couples who are wasting their money as they go through the process at the moment. I am willing to try almost anything because this has been a concern of mine for the past 40 years. We need a framework for couples that is more in line with what is tried and tested in New Zealand, Australia, Scotland, North America and Europe. While appreciating that this is an issue in flux and the fact that the legislation I am proposing would still have to go through the Commons, I hope very much that the noble Lord will be open to discussion with me and other concerned parties about how to get exactly the right wording in relation to proper disclosure—I absolutely understand his concerns—and the flexibility that is necessary. I am convinced that we must do this and I believe that the Minister shares that concern.