Divorce (Financial Provision) Bill [HL]

Lord Carlile of Berriew Excerpts

2nd reading (Hansard): House of Lords
Friday 27th January 2017 Lords Chamber

[Lord Carlile of Berriew (Non-Afl)]

My Lords, I will speak briefly in support of the Bill in the name of my noble friend Lady Deech, who has committed a great deal of endeavour, energy and her formidable intellect to devising it. Very good reasons for supporting the Bill have been given by other noble Lords and, especially, by my noble friend in her opening speech. As my noble friend Lord Dykes has just said, the issue is the depletion of assets. We should think about the assets of people of moderate or nearly no wealth. For divorcing couples of that kind, the loss of assets in costs means that there is often very little left, much to the prejudice of the children. I agree with the noble Lord, Lord Kirkhope, that they are an important part of the picture.

When I was a young barrister—though not for the last 30 or 35 years—I used to do divorce cases. In those days, there was actually a degree of certainty about the money. It was not fair, because there was what we called the two-thirds/one-third rule. I am sure your Lordships can guess who got the two-thirds and who got the one. However, at least there was certainty and very little argument over money in most cases. Also, in those days we did not have the huge oligarch cases on the regular basis that we see now. The celebrated cases then mostly involved Members of your Lordships’ House. However, in those days we did not have any certainty about children. As a barrister, I was involved in some painful and distressing cases—and I do not distress easily in my professional role—about who should have what was then called custody and access to the children. In one case in which I appeared the father killed the two children a year after he received a settlement over them which he did not like. We have much more certainty today about arrangements for children. There are presumptions about natural parenthood which inform the courts and there are not such great battles over children, though I certainly do not suggest that there are none.

Now it is the other way round. As the noble and learned Lord, Lord Walker, illustrated, one of the problems is that the appeal cases—the precedents which lawyers read and on which they advise their clients—often involve vast sums of money and have no real relationship to the ordinary divorcing couple. This Bill seeks to address the position of the ordinary divorcing couple by inserting some certainties into the picture, which I applaud.

The Bill also seeks to give particular status to prenuptial settlements. There is a degree of dislike among young people of prenuptial settlements as they suggest that they do not have absolute confidence in each other. When some of them are divorced years later, the suggestion is that they should have had less confidence in each other. If it is a true relationship, the creation of a prenuptial settlement should not break it asunder. If it does, it tells them something. Therefore, I do not think that we have anything to fear from prenuptial or, indeed, post-nuptial settlements as long as they are conducted fairly. This deliciously short Bill puts those principles into statutory form and produces greater certainty for people who unfortunately, having married, find that they can no longer remain married to one another. Therefore, I hope that your Lordships will support my noble friend’s Bill.