Divorce

Baroness Murphy Excerpts

Monday 18th October 2010 Lords Chamber

[Baroness Murphy]

My Lords, I am no lawyer, and I really do not know much about divorce law, but I have been through a divorce, which has led me to observe what happens in the courts. It was a long time ago, before the case of White v White in 2000, but it led me to think about how the law treats marriages and what we might do about it. I have a great deal of sympathy with the ideas expressed by the noble Baroness, Lady Deech, on how we might move forwards.

On “Desert Island Discs” recently, Kirsty Young asked Fay Weldon how she felt when her husband of 30 years left, and she said,

“I thought I would go mad”.

That captured for me the exact sense of disorientation, disbelief, anguish and despair that I felt when it happened to me—an infinitely greater loss than bereavement, it seemed to me, since you lose your entire notion of who you have been for 50 years. The rather disdainful approach that I had previously taken in a secure marriage, as I thought it, to people whose marriages had collapsed naturally disappeared very quickly. If I can talk about this subject now with equanimity, it is because it all happened more than 13 years ago and I have had the good fortune to marry again.

I sought out the very best divorce lawyer I could, as did my husband. He was a businessman, and our affairs were very complicated with businesses and homes abroad as well as here. I was the joint owner of some of them and not others, so noble Lords can imagine that it was a very difficult matter to tease out the ownership of these various possessions. But we were both very determined from the outset that we would remain close friends and stay close to each other’s families. Did the lawyers help? They were the very best, nicest people and were even personal friends with each other, but several weeks down the line the adversarial system had us both with barristers lined up and cocked at the ready, ready for the courts to proceed. We were both getting more desperate, not less. We had a chat about it and said that we thought we could probably do a better job ourselves, so we went off to the pub and went line by line down all our assets and decided how to divvy them up. Some of the assets, of course, had more financial value but less emotional value, while others had more emotional value and less financial value. We simply went back and sent a joint letter to both our solicitors saying, “Please get on with that—that is it, please”. We were not very popular with our solicitors, but I know that any more fighting would have destroyed our future relationship. Having dealt with the separation agreement to our mutual satisfaction, we could then start to deal with the rest.

I realise that many couples will not be able to negotiate in this way. Often one spouse is much stronger than another and sometimes there are few feelings left for the other person. Anger turns to revulsion very quickly. People will behave badly if they can get away with it, and men and women are equally to blame for bad behaviour. Yet I believe that if we had had a skilled mediator in place, we could have solved many of these difficulties from the outset. I particularly liked the introduction in 2003 of the collaborative legal practice arrangements, where people sit down with their lawyers, outside of court, and do it together in a low-key way, still having joint conversations and avoiding the expensive court battles. It seems to me that people ought to go through that first, as a sort of obligatory phase.

Where children are involved, it seems to me that an adversarial court situation is, frankly, bonkers. It is expensive, detrimental to the health of children and leaves scars between the parents that are unlikely ever to heal, meaning that children, in effect, often lose one parent entirely. Frankly, I do not see why legal aid should be available to allow unhappy people to continue mutual squabbling over the possession of their children—and how often have we seen that?

The noble Baroness, Lady Meacher, and I share an office with the noble Baroness, Lady Howarth, who is the chair of CAFCASS. The horrific stories that she tells of the sort of things that children are subjected to in courts while being fought over makes your hair stand on end. As one American lawyer said, the parents declare war and then draft the children. Disputes should be settled out of court through mediation and dispute resolution by non-adversarial professionals. We have an edifice of family courts whose raison d'être we should question. I understand that 95 per cent of divorces in the US are now completed through mediation and/or legal collaboration. Surely, we should aim for that here.

However, what about the very wealthy and the underlying principles? It seems to me that the basic premise of White v White in 2000 is right. The law on the needs basis had not kept up with changes in society. In most cases, the courts were trying to satisfy the needs of both parties with limited resources. The noble and learned Lord, Lord Nicholls of Birkenhead, emphasised that there could no longer be gender discrimination when determining the allocation of ancillary relief. He said,

“If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner or the child-carer”.

The House of Lords also recognised that, by being at home and looking after young children, a wife may lose forever the opportunity to acquire and develop her own money-earning qualifications and skills. To a great degree, that is still so. The noble and learned Lord, Lord Nicholls, also said that the judge,

“would always be well advised to check his tentative views against the yardstick of equality of division”,

and that it seemed to him that equality should not be departed from, apart from with good reason. All of that seems absolutely right.

What do we do about foolish men with large fortunes who get hitched to gold-diggers, then find themselves divorced a few years later? My heart does not bleed for them very much; no, men and women will always be fools in love and there is surely scope within the principles of White v White for adjustments to be made. As Simon Cowell—he is the one on the other side when the rest of us are watching “Strictly Come Dancing”—recently said:

“Marriage is an outdated contract … I don't believe in marriage, certainly not in this business”—

I suppose that he means show business. He said:

“The truth is that you get married and in a year or two they clean you out”,

so he is wisely remaining single for now. He is engaged instead, which seems to be an end point rather than a plan to do anything else in the future.

I am rather ambivalent. I am very attracted to the right reverend Prelate’s view that once you marry someone, you are forming a partnership more than a temporary arrangement. You are making a life and committing yourself to that person. On the other hand, we must recognise that there is a force to be had in saying that in the modern era, having some sort of premarital arrangements or commitment would probably be more sensible. So the answer is for us all to have prenuptial agreements when we embark on the journey, however wealthy or impoverished we start out. Making them legal would at least be a partial step towards the sort of reform that the noble Baroness, Lady Deech, is advocating.

My final point is about the no-fault divorce system. It must be sort of right; we cannot expect the courts to weigh up all the various causes and hurts between individuals. Rather than a no-fault divorce, though, I would like to see the notion that it is everyone’s fault—in other words, that the two people have somehow contributed to this failure overall, and that ought to be recognised when people are going before mediation and the collaborative legal system.

My solution for the moment is a universally legally binding prenuptial agreement, but I still rather like the idea that we have to take on the notion that when we marry, we do so for life.