Divorce, Dissolution and Separation Bill [HL]

Baroness Deech Excerpts

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

[Baroness Deech (CB)]

My Lords, the phrase “the heat of the battle”, just used by the noble Lord, Lord Morrow, provides a very succinct and appropriate introduction to my amendment. Everyone who has spoken so far has been in agreement. We support the institution of marriage and civil partnership. We want people to be stable and happy, to avoid disputes, and to provide security and warmth for their children. We differ only on the detail of how best to do it.

The difference between the context of today and that of the last time divorce was debated is the social context: more varieties of relationship, more avoidance of marriage, less disapproval when things go wrong, and more individualism within and outside of the couple’s relationship. The enduring problem is the effect on children of the break-up and how to cope with the dismantling of the housing and financial structure created by the parents. They used to say, “Marry in haste, repent at leisure”; this Bill will put an end to that. It will be “Marry at leisure”—because so many people prefer to cohabit first—and “Repent or divorce in haste”.

I accept that the wish of nearly everyone is to remove as much dispute as possible from the divorce process: to get it over and done with, as quickly as possible, to reduce the pain. It is in that spirit that I am introducing Amendment 20. In their good intentions, the Government have put the cart before the horse. Divorce, whatever its basis, will be over and done with perhaps in weeks or months. But the financial settlement for the couple and their children will have a lifelong effect and is likely to take much longer to arrange than the divorce. It will contain all the bitterness and antagonism that this Bill tries to remove from the substantive divorce.

I have spoken many times about the iniquities of our outdated financial provision law and I will not rehearse them here, save to remind noble Lords that distinguished lawyers—and more importantly members of the public—find that law uncertain and overly judge-made, with little resemblance to the governing statute. The law has no public input, remains unreformed for half a century of social changes and is very costly. I have a list of cases where the legal costs amount to half or more of the couple’s assets. We must also remember that there is no legal aid, as the noble Baroness, Lady Chakrabarti, has reminded us. Those who must represent themselves are left to flounder without even the most basic knowledge of what principles of division they should adopt.

Children’s needs are neglected while the adults fight. Only this week, the Times reported that one-third of separated parents are avoiding child payments. The Government will not succeed in removing hostility from the divorce proceedings unless they bring the financial provision law into line. It is almost oven-ready, as they say, as a few years ago the Law Commission drafted a Bill to put prenuptial agreements on a statutory basis. All who know Scottish law can see that its system is far better, cheaper and fairer, with much less recourse to litigation.

I have on several occasions set out proposals for reform, now taken up by the noble Baroness, Lady Shackleton, in her Private Member’s Bill—the Divorce (Financial Provision) Bill. She is unable to be in her place at this moment, but she is in full support of everything that I am saying.

With the Government’s Bill before us relating to substantive divorce as distinct from the money element, there are further urgent reasons to achieve reform of the financial element of divorce. I will set these out, as they underlie my amendment. In brief, there is no point in trying to achieve the aims of the divorce Bill—to make divorce less acrimonious and harmful to children—if the laws relating to the division of money on divorce remain as uncertain, expensive and acrimonious as they are. Research has shown that the quicker the divorce, the less likely the parties are to come to an agreed settlement, and that they will be more likely to settle on financial matters when more time has elapsed. This does not augur well for consensus in the proposed new law.

Twenty-six weeks is a brutally short period, after which one can well imagine that the unsuspecting spouse is still in the house, reeling with shock, utterly without plans about where to live or how to manage in the future, and without legal advice. The time taken to reach financial settlement is often far longer than the divorce itself, and even more prolonged if the couple cannot agree and must go before a judge. Financial orders can take years, as we read recently in the media about the highest in the land. It is not advisable to apply for the decree absolute, or final divorce order, until the finances are settled, as there may be tax disadvantages if there is a considerable gap between the end of the marriage and the consequential financial transfers.

As explained to me by that experienced noble Baroness, Lady Shackleton, the court can adjudicate capital only when a conditional decree—what we used to call the decree nisi—has been obtained. The Bill enables a conditional decree to be obtained faster, but disengagement from marriage can occur only when finances are sorted. Thus the acceleration of the decree is valuable only if the law relating to finance is overhauled, and that too can provide some certainty.

Moreover, if a spouse is not satisfied with the financial settlement on offer at the time of a conditional decree, he or she may apply for the final divorce to be postponed. This is provided for in the Matrimonial Causes Act 1973 and carried over into the Bill, paragraph 10 of the Schedule to which says that

“the court hearing an application by the respondent … must not make the divorce order final unless it is satisfied”

that there should be no

“financial provision for the respondent, or … that the financial provision”—

the offer—

“made by the applicant … is reasonable and fair or the best that can be made in the circumstances.”

Again, the quick divorce may be thwarted by a spouse who is not happy with whatever has been offered and wishes to delay matters.

--- Later in debate ---

Amendment 7 withdrawn.

[Baroness Deech]

I have not withdrawn Amendment 20 yet.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

For the convenience of the House, when the amendment tabled by the noble Baroness is called, she may then have the opportunity to speak to it.

--- Later in debate ---

Moved by

[Baroness Deech]

20: Before Clause 6, insert the following new Clause—
“Review of operation of certain sections of the Matrimonial Causes Act 1973
(1) The Secretary of State must conduct a review of the operation of sections 25, 25A and 34 to 36 of the Matrimonial Causes Act 1973 (the “Act”) to determine whether they—(a) properly reflect the patterns of family life of the present day,(b) provide for a system which is reasonably predictable in its outcomes from case to case, and(c) act to exacerbate the costs of legal representation which must be expended by parties litigating thereunder.(2) The review must in particular consider—(a) whether it would be appropriate for provisions akin to sections 9, 10 and 24 to 26 of the Family Law (Scotland) Act 1985 to be incorporated into the Act to assist the court in its determination of the matters to which the court is to have regard pursuant to section 25 thereof,(b) whether the operation of sections 25 and 25A of the Act in relation to the quantum and term of periodical payments is appropriate in the context of changes in the labour market since their entry into force, (c) whether agreements between parties (or prospective parties) to a marriage in relation to their financial arrangements should be presumptively binding on the court,(d) whether the provisions of subsection 25(1) of the Act are of meaningful effect in the majority of cases, and(e) any amendments to sections 25, 25A and 34 to 36 of the Act which may be necessary in consequence of the review.(3) The Secretary of State must begin the review before the end of the period of six months beginning with the day on which this Act is passed.(4) The Secretary of State must lay before both Houses of Parliament a report of the conclusions of the review and of any proposals which it makes within one year of the commencement of the review.”

[Baroness Deech]

My Lords, I thank the Minister for having spent some time with me and other supporters a week ago to discuss this. It was very constructive. If I do not press my amendment, it will be on the basis that he has given a commitment here to carry out a broad consultation on financial provision law, and indeed a speedy one. I offer a word of warning. I am worried about strong lobby groups that will try to take this over. Some of my best friends are barristers—I studied with them, taught them, regulated them, and I have been represented by them—but the eyewatering amounts that they charge in divorce is upsetting. I am married to a solicitor and I know that they get in on this act as well. I am not saying that they do not deserve it, but for poor couples who have no legal aid the legal costs are exorbitant. That is why I am worried about a consultation that is too heavily weighted towards the views of the legal profession. We need to hear from women’s groups and, indeed, from men; we need to hear from people who have been through a divorce—members of the public—and how it has affected them. We need also to remember that there is more than one feminist view on this. Indeed, as we might expect, there is a split between feminists on quite what the right outcome should be, financially, at the end of the divorce. I am grateful that the Minister has undertaken to have a wide-ranging and speedy review, so that the financial law will eventually get into line with the new divorce law.

Amendment 20 disagreed.