Divorce, Dissolution and Separation Bill [HL]

Debate between Lord Grantchester and Lord Marks of Henley-on-Thames

Committee stage & Committee: 1st sitting (Hansard - continued) & Committee: 1st sitting (Hansard - continued): House of Lords
Tuesday 3rd March 2020 Lords Chamber

[Lord Grantchester (Lab)]

I rise to speak briefly in support of Amendment 20, to which the noble Baronesses, Lady Deech and Lady Shackleton, and the noble and learned Lords, Lord Mackay and Lord Walker, have put their names. From a lay, non-legal perspective, it has much to commend it.

While political parties and Governments hesitate to legislate on family matters, in particular divorce, the Matrimonial Causes Act 1973 has persisted over the legal landscape of marriage and divorce without being substantially updated by statute for far too long. For example, in recent times, uncertainty around the implementation in law of prenuptial agreements has resulted in bringing misery to many families, adding to the unpleasantness so often experienced at the difficult time of separation.

The noble Baronesses, Lady Deech and Lady Shackleton, are to be congratulated on their sustained attempts to bring greater legal certainty to couples through their Private Members’ Bills on financial provision on divorce. Resolution around finance should not be dependent on which judge may be allocated to a case, which even now can predictably lead to wildly differing quantitative outcomes. New Clause 1(c), proposed by Amendment 20, could lead to one party seeking to add financial pressure through the cost burden of legal pursuit and representation, knowing full well that the other party will have to bear a proportion, often a large one, of any litigation.

Although some may argue that a deep examination of each individual situation will bring forward the relative merits of each case and each issue, custom and practice is not a useful or fair guide to society’s changes in family life. It should be a matter for Parliament, not the legal profession. The next legal battle is already developing over cohabitation. The decision to conduct a review of sections of the Matrimonial Causes Act 1973 under proposed new Clause 1 must be taken by the Government.

I am grateful to the noble Baroness, Lady Deech, for tabling the amendment. I am also grateful to the other signatories to the amendment for sharing their experience and expertise with the Committee, as well as for highlighting the areas for review under the second part of the amendment. It is certainly unfortunate that the noble Baroness, Lady Shackleton, is unable to be in her place.

I urge the Government to think carefully about this amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I will first address Amendments 7 and 17A, tabled by the noble Lord, Lord Farmer. These would prevent the commencement of financial provision proceedings, except for maintenance pending suit, for 20 or even 12 weeks on his alternative, in the absence of the consent of the other party.

I suggest that these amendments—like earlier amendments that restrict the choice and autonomy of parties to a marriage that has failed—are patronising. As I understand it, they are supposed to allow for periods of reflection. I am all for periods of reflection where they will do any good, but they usually do good if they happen before any divorce proceedings are under way.

There are many cases where, by the time divorce proceedings are commenced, a financial provision application has become urgent. This is particularly so where one partner to a broken marriage has remained in an unhappy marriage or is enduring financial hardship, and even in cases where both parties agree to a divorce, but not to the timing or the form of financial provision. One example is when a home should be sold.

It is very important not to hold up financial provision applications on a blanket basis, given that parties frequently stay together long after their marriages have in reality failed, either because they have to live together in one home for financial reasons, or because they decide to stay together for the sake of their children. Why should parties in their position then be made to wait further for financial relief, when delay may cause considerable hardship and unhappiness?

There is, of course, no compulsion on a party to commence financial provision proceedings immediately. I suggest that the timing should remain within the choice of the parties and—where there are such—their advisers.

There are many other cases where, by the time the proceedings are commenced, the parties are living apart. One spouse may be with someone else. Generally speaking, such parties know of the issues between them relating to financial provision before proceedings are brought.

Take for example a currently well-known case. It would be appallingly high-handed to tell a practicing QC, married to a prominent figure—who was very publicly living with someone else, whom he had committed to marry and who was expecting his child—that she would have to delay for 20 weeks before taking steps to secure financial provision in divorce proceedings without his agreement.

There is no good reason to debar financial proceedings once divorce proceedings are under way, so I oppose these amendments.

On Amendment 20, which calls for the review to which the noble Baroness, Lady Deech, has spoken so eloquently, I agree that a review of the law on financial provision is desirable. However, I do not think that the statutory requirement for such a review sits comfortably within this legislation, which is, and should be, limited to removing fault from the divorce process.

I take the view, eloquently expressed by the noble and learned Baroness, Lady Butler-Sloss, that the process of divorce ought generally to be kept separate from issues of financial provision. I would be happier for the Minister to commit to commissioning, in the near future, a wide-ranging consultation with a review of financial provision on divorce, with a view to updating an area of law that has become, for many, out of date and out of step with modern social mores.

I find in the terms of the noble Baroness’s amendment, borne out in her speech, and discerned and spoken to by the noble and learned Lords, Lord Walker and Lord Mackay, an element of prejudgment of what should come out of such a review. I am not sure that picking out the desirability of importing something like the Scottish provisions, the term of periodical payments and the enforceability of prenuptial and post-nuptial agreements, into what should be a wide-ranging and full review is the best path to conducting it.

I do not share the noble Baroness’s cynicism about the Bar, my profession, nor her view that no barristers support reform of the law in this area. Indeed, I support reform of the law in this area, in many ways on the same basis that she does. I certainly support her view that the law on financial provision is too complex and expensive. I endorse her view and that expressed by the noble and learned Lord, Lord Mackay, that there is scope for some kind of a framework or model for use in the generality of cases.

However, there is room for discussion on the extent of judicial discretion, as the noble and learned Lord, Lord Mackay, pointed out. On the term of maintenance payments, I am particularly concerned about the position of older applicants or those in ill health who would normally expect and be entitled to long-term provision. Cutting maintenance off in the short term might be a bad idea.

While I support the idea of a general review of financial provision, I hope the Bill will not be amended to incorporate a statutory requirement in the terms of the noble Baroness’s amendment—but I would welcome a commitment from the Minister to carry out a consultation and review.