Divorce

Baroness Deech Excerpts

Monday 18th October 2010 Lords Chamber

Tabled By

[Baroness Deech]

To ask Her Majesty’s Government whether they will introduce legislation to ensure that financial provision on divorce is determined on fair and settled principles.

[Baroness Deech]

My Lords, it is fortunate that I am asking this Question of the Government today about financial provision. Not only is this an issue of great importance that has not been addressed by Parliament for some 40 years but on this very day it has also been announced by the family law review project that, in an effort to save legal aid and reduce antagonism between parents, mediation will have to be attempted before parties are enabled to litigate about their children after divorce. One of my themes is that mediation and changes to procedure to reduce litigation cannot succeed if the substantive law is uncertain and unfair, as I shall explain. Moreover, we will receive very shortly the judgment of the Supreme Court in its first case on the validity of prenuptial contracts. This, too, is highly significant as a method of reducing conflict on divorce.

Your Lordships may wonder why I am addressing this issue. It is because of a lifetime spent teaching and lecturing on divorce law and being in receipt of the views of the many who write to me about it whenever I speak in public. If, by any chance, your Lordships regard some of my views as idiosyncratic, that is the privilege of a Cross-Bencher. I assure your Lordships that I have a solution to the problems that I outline, one which is tried and tested, and widespread. I emphasise that I am speaking not in my capacity as chairman of the Bar Standards Board but in a purely personal and academic capacity.

London’s reputation as the divorce capital of the world is deserved. It has prompted a surge in divorce tourism such that one in six divorces has an international element because of the high-profile financial settlements among wealthy divorcing couples where generous awards are made to ex-wives. However, the majority of families going through the courts to settle their financial disputes on separation face very different challenges in the quest for fairness. English law relating to financial provision on divorce has proved to be unfair, uncertain and expensive. It is based on out-of-date stereotypes. It is out of step with the laws of other European countries; it is out of step with divorce law itself; and it has remained largely unrevised by Parliament for decades. Its deficiencies are obstacles to a more consensual and cheaper resolution of financial issues on divorce. This is especially important and damaging in its effect on the welfare of children after divorce. Moreover, reform would save legal aid and costs.

Successive judgments in the House of Lords and the Supreme Court have reflected the judicial view of changes in family life but have brought about confusion in the law and in principle. This makes firm legal advice leading up to settlement almost impossible in wealthy cases and racks up the cost of litigation. A case called White v White was thought to have pointed towards a yardstick of equality of division but that has moved away again. Subsequent judgments have emphasised the themes of needs, compensation and sharing, although it remains unclear how they interrelate with each other and with the statute. All the circumstances and all the assets are available for consideration but some recent cases have suggested that there may be a category of assets that should remain with one spouse in certain conditions. No wonder that spouses resort to illegal seizure of financial documents from the other—a practice castigated in the Imerman judgment. Yet how else might some wives find out what their husbands earn? Our judges mean well but the price of flexibility and micromanagement is delay, uncertainty and expense.

There are cases where the costs of litigation have exceeded the value of the assets in dispute. Mr and Mrs White spent £500,000 in costs to settle the ownership of £1.5 million. Mr Miller is taking the Government to the European Court of Human Rights on the ground that divorce laws are so uncertain that they infringe his human rights. The statutory principle of a clean break between spouses has faded. There are cases when spouses come back to court after a quarter of a century of living apart to seek a change in the maintenance level. Quarrels can never be put to bed. There is enormous public anger, especially among those who have been involved in divorce. They find this state of affairs unjust and immoral. They do not see why maintenance continues to be paid to an ex-wife who is pregnant by, or living with, another man, or why conduct is not taken into account. The theory of divorce is that it arises from irretrievable breakdown of the relationship without fault but in reality this is not how it is seen in most cases by the parties.

Well-off wives—a new category—especially those with high earnings of their own, do not see why they should have to transfer their assets to an ex-husband whom they regard as having treated them badly. Let me quote from one or two of the many letters that I received after lecturing on this. One is from a divorcing wife:

“the law is supporting his efforts to take away my home”,

and savings in order to support him, his girlfriend and child.

One is from an ex-husband:

“a complete travesty of natural justice being foisted on me by the present law”.

Poor ex-wives will hardly get by and maintenance for children is a vital issue for which, unfortunately, there is no time this evening. The law rewards most significantly the non-working wife of a wealthy man—almost regardless of the length of the marriage, children and contribution. The message given out to young women is that their life’s success has to be tied to finding—and, perhaps, divorcing—a man of means, rather than working to support themselves. Awards worth millions of pounds are made to the ex-wives of pop singers and footballers. Many divorce awards are sums greater than a working woman will earn in a lifetime of salaried employment.

The law does not even recognise prenuptial agreements as legally binding. The judgment on that in the Granatino case is imminent, but at the moment we have the worst of all worlds. It has been hinted that they might be binding, but a court can only decide agreement by agreement whether that is so or not, so more litigation may ensue in determining whether the contract is to be upheld.

It is high time that English spouses, like those on the continent of Europe, were treated as adults, able to bring certainty to their financial affairs on divorce and avoid litigation by deciding for themselves what to do. It would be ironic if our law refused to recognise prenuptial contracts entered into voluntarily while we are considering imposing a matrimonial financial regime on cohabitants who have not consented to it. The law is in any case not fit to apply as it stands to cohabitants.

It is time to move to a European law for the division of matrimonial assets, commonly known as community of property. The courts of most European states have less flexibility. Awards are lower and there is more certainty because the principles have been laid down in advance and agreed to. Most European and some North American states have community of property schemes that apply to divide post-maritally acquired property equally on separation. Assets owned before marriage are excluded. Couples may agree to keep their property separate if they prefer. Maintenance awards are lower because it is assumed that wives will work, and inheritances remain with the inheritor. However, the UK is resisting the moves to harmonise European matrimonial property law. The rest of Europe seems to take the hard-won principles of feminism and equality rather more seriously than we do. Even in Scotland, there is a very different approach. Maintenance awards are normally for three years only, unlike lifetime awards in England, and the matrimonial property is split.

The Law Commission tried to find consensus, with attempts at formulating a law about sharing homes and another about cohabitation, but has failed, in that there is no national agreement about what to do. The Government have to take the initiative on this for the sake of children and costs. They should legislate for the introduction of the European system of community property and the validity of contracts about these issues made between spouses and other adults. That would also have the benefit of removing the temptation for European divorcees to come to England for dispute resolution in our courts. It is not a perfect solution; it is a blunt instrument, which will not universally be seen as fair; but the advantages outweigh the disadvantages, and no better solution has been proposed. It would save money and reflect real equality between husbands and wives.

It is time for the Government to allow time for debate to face up to the resolution of modern ways of living in families and easy divorce. It is time to call for reform, not by judges struggling to cope, but by our legislators.

--- Later in debate ---

[The Lord Bishop of Blackburn]

My Lords, I am most grateful to the noble Baroness for this debate.

Love has always been recognised as the most costly emotion, and traditionally it has been valued in terms of personal commitment rather than economic obituaries.

“How priceless is your unfailing love”,

the psalmist wrote of the God whose love is so great that it “reaches to the skies”. The recent valuing of love—or, rather, its failure—in multimillion pound divorce settlements, in which a significant number of those listed had earned their fortunes in the entertainment industries, ranged from the reputed £7.5 million to £12.5 million paid by one celebrity when their 22 year-old marriage foundered, to the £75.5 million an American rock star settled on his former wife. When a famous film director paid his former wife £50 million, he was believed to retain a further £50 million for day-to-day necessities.

This surely goes to the heart of our debate today, for I understand that this settlement began as a prenuptial arrangement. The cynic could argue that failure was costed into the price of this couple’s original devotion. Such settlements, no doubt much loved by legal and financial professionals who profit from them, are in danger of reducing marriage to the economic bargaining of historic marriage contracts and of cheapening sacred commitments into balance sheets. Let us override cynicism with Christian realism. Of course we encounter a strong objection to the tenor of such requested legislation, for in a Christian understanding of marriage such prenuptials weaken and dilute our marriage vows of lifelong commitment, where sacrificial love forms the bedrock and the core. The established church’s marriage service includes this moving, mutual commitment:

“All that I am I give to you, and all that I have I share with you”.

This states the deepest possible giving and gifting, with nothing held back in personhood or economics. These commitments, made before God and all those attending a Christian wedding service, look confidently towards a new, positive and progressive relationship in the unfolding history of human love. There is no suggestion here of an economic breakdown kit, poised for use if dreams fade or demands surmount expectations.

But let us be clear: this is not to deny that, tragically, many marriages fail and that, as the noble Baroness requests, “fair and settled principles” should safeguard legally required settlements. Nor is it to deny claims that marriage may be limited among older people unwilling to formalise relationships without agreements safeguarding responsibilities to family members from former marriages.

But such considerations, valid as they are, can also detract from a more demanding duty of this House: that of supporting the primacy of marriage rather than legislating for its dilution, and leading our nation in reasserting positive principles rather than writing provision for failure into a sacred institution created for lifelong blessing and support.

Perhaps the problem with this requested legislation is that, like much current policy and resources, it concentrates on the ending of relationships rather than on supportive foundations for their future. Like the prenuptial agreement, it raises the spectre of relationship disease, with all the consequent emotional and economic costs of family courts, mediation, child support and associated issues, rather than hoping, planning and praying for the emotional health of marriage and offering significant support.

In a society deeply wounded by divorce, the balance of resources should be devoted to relationship education and marriage preparation, and to supportive healthcare for marriage rather than ambulance-chasing after divorce settlements. If more attention was given to this area of our nation's life, we would not have to spend so much time debating what happens when relationships end, and our society would be stronger and more stable as a result.

[Baroness Deech]

Is the right reverend Prelate aware that in many Catholic countries in Europe, where the divorce rates are much lower than they are in this country, the sort of system that I have recommended prevails? I refer to France, Italy, Spain and so on. They have much lower divorce rates, but they also have the system that I have proposed, which might support rather than diminish the institution.