Financial Provision on Divorce

Baroness Shackleton of Belgravia Excerpts

Monday 10th November 2025 Lords Chamber

[Baroness Shackleton of Belgravia (Con)]

My Lords, I am grateful to the noble Baroness, Lady Deech, for this debate. I feel humbled to follow the noble and learned Baroness, Lady Butler-Sloss. I have spoken on many occasions in your Lordships’ House about the urgent need for reform in relation to ancillary relief in divorce. Rather than go over very familiar territory, which just gets lost, I will focus—as previously flagged to the Minister—on the law in prenuptial contracts, in the hope that something will actually get done. It is simply not acceptable that the legislators will not deal with this issue as a stand-alone one to be fixed. This came before your Lordships’ House on 28 February, and I am still waiting for a response from the noble Lord, Lord Timpson. I do not make any criticism there, because when we were in government it was no better.

To say that this depends on sorting out the entire matrimonial financial remedies situation, including cohabitation rights, is an absurd excuse for dealing with an issue that is not even mentioned in the 1973 legislation as amended, and on which the Supreme Court in Granatino, now 15 years ago, invited Parliament to legislate. I declare my interest both as a divorce lawyer and as a member of the Marriage Foundation. As one can imagine, 15 years since the ruling in Granatino upholding the validity of prenuptial contracts in certain circumstances, there has been a seismic shift in the acceptability of such contracts. As a consequence of them being entered into, and those marriages breaking down now, the occurrence of cases appearing before the family courts has increased.

According to a recent survey, 46% to 47% of people under 50 regard such contracts as a good idea, whereas 37% of the over-65s are in favour of them. The best statistics that I could glean in relation to prenuptial contracts coming before the courts are as follows. In 2010-15, there were 310; in 2015-20, there were 359; and in 2020-25, there were 542. Prenups are no longer the preserve of the rich—or exclusively of the rich—and sufficient time has passed since Radmacher for prenups to trickle down into public consciousness. Not only are prenuptial agreements more common, but they are also entered into by parties who have modest assets but wish to retain their financial autonomy—maybe one is a homeowner, or maybe there are two professionals —or by people entering a second marriage.

The point made by my noble friend Lord Patten on children is good and valid. Wearing my hat as a Marriage Foundation member, I note that statistics show that, when children are born of unmarried couples, they fare less well and that that relationship is more likely to flounder. People do not get married when the uncertainty of getting divorced is so obvious and they cannot protect themselves.

There is absolutely no consistency in how these contracts are applied, the two-step test in Radmacher being that the contract has to be entered into freely between the parties but will not be upheld if a court determines that it is unfair to do so. What is fair depends on the judge, who from Parliament is given no legal direction. The application of the law is now at odds with the facts in this case, where there was no disclosure and the husband, although advised to get legal advice, did not get any. Had he done so, he would have found that the law in England, where the parties were living, was that these agreements were only evidential and unenforceable.

The issue of fairness, which influences whether the court will uphold such a contract, usually revolves around the applicant’s needs, although needs is a very elastic and discretionary term applied by the tribunal. It is not even clear with the whether the existence of a PNC limits or curtails needs. For the avoidance of doubt, it is impossible to contract out of children’s maintenance, which is always open for the court to adjudicate on. The absence of any legislation in this regard leaves such contracts open to challenge; at a time when the rest of the law is so very uncertain, their reliability is even more important. The idea that alternative dispute resolutions or mediators are able to sort out the problem in relation to the treatment of a PNA is fanciful, when two respectable lawyers can differ in their interpretation of the law and therefore frustrate any mediated situation. From October this year to May of next, the president has announced—

[Lord in Waiting/Government Whip (Lord Lemos) (Lab)]

I am sorry to interrupt, but I am conscious of the advisory time limit and giving the Minister enough time to wind up.

[Baroness Shackleton of Belgravia (Con)]

Can I just finish quickly then? The president has announced that financial remedies are being taken out of the list, because there is no time to deal with them. The courts are being blocked by litigants in person and rich people and, in a situation where the law were clearer, the courts would have more space to deal with people who really need them.

--- Later in debate ---

[Baroness Levitt (Lab)]

It is very difficult to resist the noble and learned Baroness, with all her experience, but I am afraid that I will have to do so.

I pay tribute to the noble Baroness, Lady Shackleton, who is greatly admired and respected, not just because of her expertise and experience. The points she raised were supported across the House by almost all noble Lords. It is frustrating that the previous Government did not give a full response to the Law Commission’s 2014 recommendations on nuptial agreements. As we are working towards our consultation, we are carefully considering this issue. It will be taken into account, to ensure that we have a consistent framework, which will be designed mainly to put children at the centre of what happens when relationships break down.

[Baroness Shackleton of Belgravia (Con)]

I am sorry to interrupt the Minister. To what extent does a prenuptial agreement influence the protection of children? We cannot legislate in a prenup any rights in relation to them. It is open to the court—every single avenue is open to the judge. Someone simply cannot contract out.