Divorce (Financial Provision) Bill [HL]

Lord Bishop of Chester Excerpts

2nd reading (Hansard): House of Lords
Friday 11th May 2018 Lords Chamber

[The Lord Bishop of Chester]

My Lords, I join others in congratulating the noble Baroness, Lady Deech, for her persistence and perseverance in bringing this Bill forward and for her very elegant opening speech.

I have not spoken on divorce in the House before, but on a number of occasions I have spoken about marriage and its place in society, including in a balloted debate just a few years ago. So many of our social problems are exacerbated by the modern frequency of divorce and the break-up of relationships outside formal marriage—key drivers behind poverty, child poverty, homelessness and housing shortages as well as loneliness and all the social and psychological problems that can follow from that. The impacts on children can be variable and are disputed, but nevertheless they are surely real.

Yet we have to be realistic: divorce happens and, indeed, can be the right way forward; perhaps it often is. There are few things worse than being trapped in an unhappy marriage, although I sometimes wish that people started out with a more realistic sense of the inevitable ups and downs, tensions and demands of marriage. A president of the Mothers’ Union was once asked whether she had ever thought of divorcing her husband. “Divorce? Absolutely never”, she said—“But murder? Really quite frequently over the years”.

The Christian church has found divorce a difficult subject. The view developed in the main western branch of Christianity represented by the Roman Catholic Church and those protestant churches that emerged from it, including the Church of England, was that a marriage, once solemnised, was indissoluble. Divorce or annulment were virtually unthinkable, other than in the most exceptional circumstances—as, indeed, Henry VIII was to discover. To this day, the official teaching of the Roman Catholic Church maintains that, unless a formal ecclesiastical annulment is granted, those who are divorced and remarried should not be readmitted to receive holy communion. I am pleased that Pope Francis is pushing back against this, amid a vigorous debate in the worldwide Catholic Church.

Through a rather tortuous process, the Church of England has arrived at an acceptance of divorce, to the point where those who are divorced are usually able to remarry in church, subject to certain pastoral conditions. I warmly welcome that. Indeed, in nearly 40 years of ministry, I have always been willing to avail myself of the provision in the statute law which permitted me to remarry divorced people in church. I recall 30 years ago being severely admonished by the then Archbishop of York for doing so. The secret of success in the church is sufficient insubordination.

Interestingly, the eastern Orthodox churches have always permitted the possibility of remarriage after divorce, because they have always taken a rather different view of the status of vows. In many ways, the western churches have been catching up with the long-established practices of the eastern churches.

I say all this as background to the Bill of the noble Baroness, Lady Deech, which I warmly welcome. I value the flexibility that our common law traditions give, but there must come a point, as others have said, when Parliament provides a clear legal framework when a great deal of case law has built up over a period of considerable social change. The general withdrawal of legal aid is an important factor here. Couples should be able to seek clearly in law the principles upon which their practical separation and divorce will proceed. We may regret that more people represent themselves to save on legal costs, but it is a reality that is unlikely to change.

I hope that the Bill reaches Committee, and I mention one or two issues that I suggest may need some further examination. I do not think that I have ever said before in your Lordships’ House, “I am not a lawyer, but”, although I have heard that introduction to quite a few speeches in the past. However, I have benefited from comments from some leading lawyers who work in family law—my daughter is a senior lawyer in the City and I was able to glean some advice from her. So if I speak as a fool, as St Paul once put it, I at least try to be an educated fool in what I am about to say.

For my part, I think that prenuptial agreements, if entered into freely and after legal advice, should be recognised as legal agreements, and that has been the direction of travel, as we have noted, although I wonder whether they might be subject to an overall test of reasonableness in the Bill. The noble Baroness, Lady Shackleton, said “fairness”, and I wonder whether some overall test of reasonableness or fairness is required.

There is a sense of course in which prenuptial agreements are in tension with the traditional commitments entered at marriage—for better, for worse and so forth. I certainly do not want to encourage moving to an unduly contractual view of marriage. All is fair in love and war, it is said, and war is not governed by a contract with break clauses. Imagine Britain in 1939 sending a message to Berlin: “We are declaring war, but we would like to see how it is going at Christmas”. There is a certain dynamic in some human activities where you just have to go for it without, as it were, trying to predict everything in advance. Yet the reality is that people today often marry later or with children from previous marriages, and I can see a place for prenuptial agreements in providing a better basis for a new marriage. I would regret if they became too much the norm for all marriages—though I fear that may well be the direction of travel—because there needs to be a certain sense and element of open-ended commitment and, yes, a leap of faith, in our understanding of marriage.

I also accept the general wisdom of seeking to help the people concerned in a divorce to make as clean a break as possible. The Church has moved in this direction in the—fortunately comparatively rare—circumstances of priests divorcing. When this happened in the past, it generally used to be the case that the priest was male and the spouse a female, who had often devoted herself to supporting her husband’s vocation and their family. Divorce in these circumstances was very difficult indeed. Typically, there were few assets to distribute and a diocese would house what one often called “the deserted wife” for life and would provide some maintenance. Nowadays, we seek to facilitate a clean break and provide funds for retraining, if needed, and time-limited help with mortgage payments, where necessary.

I have some hesitations over the details in Clause 5. Why is the age of a dependent child limited to 16? Children these days are often dependent on their parents for much longer than that—I speak from my own experience. Again, five years seems a tight time limit for many folk who need significantly longer to retrain and get established in a career. I would prefer seven or perhaps even 10 years, notwithstanding the possibility of a court granting periodical support for a period of longer than five years.

However, my greatest concerns are about Clause 4. The potential danger with ring-fencing premarital property is with a marriage where most of the assets were generated pre-marriage, and the marriage was perhaps a comparatively long one, perhaps with one party, usually the wife, looking after children and not developing a career. Perhaps the husband had been very busy, which was in practice what needed to happen. Perhaps the income during the marriage had been fully spent on the children’s education. There could be very little matrimonial property to divide in those circumstances, yet one party has substantial premarital ring-fenced assets and the other has given half a lifetime to the marriage but does not have any entitlement to those assets.

The Bill as drafted does not seem to have an adequate safety net—the flexibility to which the noble Baroness, Lady Falkner, referred in her remarks—either for the other spouse or for children. Again, it is limited here to children aged 21. Children in education often go on well beyond 21, so it seems too low an age limit.

These are merely the thoughts of a jobbing Bishop who has been happily married for 40 years—and who, by pure coincidence, will return to Scotland in a year or two.