Divorce (Financial Provision) Bill [HL]

Lord Davies of Stamford Excerpts

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

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I should perhaps begin by saying that I know a good deal less about this subject and its operation in practice than the noble Baronesses, Lady Deech and Lady Shackleton, matrimonial law never having been my special subject, either at the Bar or on the Bench.

Inevitably, however, I was involved in a number of cases that reached the courts including that most seminal of early pre-nuptial settlement cases, referred to several times already, that of Granatino v Radmacher —the title can be the other way round, depending on where you see the case reported. This was a case on which nine of us sat in the Supreme Court and all but one, the noble and learned Baroness, Lady Hale of Richmond, who is now of course the President of that court, gave substantially greater effect to such an agreement than the noble and learned Baroness would have given, although, as the noble Baroness, Lady Deech, has explained, we hedged it about with more qualifications than were no doubt necessary or ideal. That decision was, as the noble Baroness, Lady Shackleton, has made plain, contrary to the interests of her client, for which I suspect she has never yet forgiven us although I was glad to see that, as I understand it, she now supports Clause 3. My noble and learned friend Lord Walker of Gestingthorpe was also on the case, as he has said, and I take this opportunity to acknowledge his great skills as a legal analyst and draftsman although, like me, he was never a matrimonial specialist.

Tinker as one may wish to do with some of the details of this Bill, its essential structure is, I suggest, a model of sound parliamentary draftsmanship. On the substance of the Bill, there is really very little that I wish to say at this stage. The essential points have already been made. Many will be repeated, I expect, perhaps with fresh shades of lipstick, if that is not nowadays an impermissibly sexist metaphor.

Essentially this subject raises, as so many areas of law raise, the age-old tension between the competing interests on the one hand of certainty and predictability, and on the other of flexibility. Yesterday, as it happens, we discussed in this Chamber that tension in the context of the Civil Liability Bill, in particular as to the compensation for whiplash injuries. We are described as the whiplash capital of the world. Today, the same tension arises in the context of financial provision following divorce; again, we are described as the divorce capital of the world. What this Bill essentially aims at, just as yesterday’s, is to shift the balance rather further in the interests of predictability so as, among other things, to shorten, cheapen and hasten the resolution of disputes or potential disputes about the division of assets and so forth, when a marriage ends.

For all the reasons so ably and compellingly set out by the noble Baroness, Lady Deech, in her truly brilliant opening of this debate, I am persuaded that it is indeed now time to make this area of our law altogether more predictable than, alas, it has increasingly become over the 40 and more years since the 1973 Act. As to the specific rules, principles, policies, approaches—call them what one will—by which the Bill proposes to further this fundamental goal of greater predictability, I find myself in broad and substantial agreement with its provisions. I look forward to hearing the views of others on certain of the niceties of the Bill and I hope to have a clearer view of my own when eventually we come, as I hope we shall, to Committee. Meanwhile, I wish the Bill a fair wind onward.

[Lord Davies of Stamford (Lab)]

My Lords—

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[Lord Davies of Stamford]

My Lords, I apologise to the noble Baroness, Lady Falkner, for having misread the Order Paper and inadvertently jumped the gun. I was in the process of trying to congratulate the noble Baroness, Lady Deech, on her work in this field and on an admirably lucid and, if I may say so, succinct Bill that she has brought before the House. I believe that she is performing a valuable service for the country, for the law and—I will explain what I mean by this in a moment—for Parliament itself. To my certain knowledge she has been engaged in work on this project for three or four years, and I hope that we are now getting to the point where eventual success may be within sight.

In my view, the present state of the law as has been accurately described this morning is, if I can put it in slightly stronger language than has been used, a rather discreditable shambles. The jurisprudence has wandered a long way from the original statute, which people take little notice of, and that jurisprudence varies quite inconsistently and incoherently from one case to another, as the noble Baroness, Lady Shackleton, has just said, from first hearings to appeal hearings and so forth. That is obviously an undesirable situation for everyone. The law in a free society should be something that everyone can understand. In the present situation in the matrimonial area, it is quite impossible for lawyers to give clear advice to their clients as to the likely outcome of different cases. The fact that it is very difficult to give such advice does not mean to say that advice is not demanded or indeed being paid for at a very high price in many cases, as we have heard, but that highly priced legal advice could be of little value in many cases because of the uncertainties in this area.

Incidentally, I praise the noble Baroness, Lady Shackleton, for the line she is taking on this, because, given her substantial practice in this area, her endorsement to the Bill displays an altruistic and self-sacrificial attitude, and it is admirable when one comes across that.

There is another problem about the state of the law in addition to those already mentioned—which I therefore do not need to go into. That is that the law in its present state has proved to be a valuable and useful instrument for unscrupulous people who want to exploit others by means of fortune-hunting. There have been many cases in the press which have received a lot of publicity, and the one which we all remember from a few years ago was when a woman who had practised for some years as a professional prostitute at quite a high level in the market succeeded in marrying one of the greatest and best-known singers in the world—perhaps the best-known—and clearly expected a considerable dividend from that. She waited for the two years which is not of course statutory but often appears in the jurisprudence to be sufficient to get the full payout and then sued for divorce. She got only £20 million, not the much larger figure that she was expecting, so there is something to be said for that. Nevertheless, I think that £10 million per year is quite good payment, even in that profession. It is not in the interests of the law that it should be abused in that obvious way, which is one more reason for modernising it.

I am delighted that the noble Baroness, Lady Deech, as part of her programme, intends to provide legal backing for prenuptial agreements. Some years ago, I tried in another place to achieve that. I introduced a Bill which received an unopposed Second Reading in the other place but, as often happens to Back-Bench initiatives, it did not make any further progress and I have been waiting for an opportunity to support someone else in the venture. I am delighted that that opportunity may now have arisen.

As the noble Baroness said, the inspiration for her Bill has been many cases in Scots law, which is of course a form of Roman law. It is therefore not surprising that the general picture to which she is looking for us to conform is familiar to the continent of Europe, because all those jurisdictions have provisions much like these. The Scottish position, which says that matrimonial property is property accumulated or acquired during marriage by the two parties, not property received as a gift or inheritance from outside or which is acquired by one of the parties before the marriage, is sensible, coherent and immediately understandable. It is nice to think that, if the Bill or something like it gets on the statute book, there will be a clear criterion of that kind which everyone will be able to understand.

I make one general point before I sit down. I do not think that Parliament is very good at one of its essential tasks, which is to keep the law up to date. We are actually quite bad at it. When you come across a case where the jurisprudence is out of line with the statute, that is always a warning signal. That means that, in principle, Parliament should be looking at it, but often we do not.

I shall perhaps shock the House by saying that one incident that caused me considerable concern was a change in the law relating to rape within marriage. Under traditional common law, rape was impossible if the parties were married. I disapproved of that and was very much in favour of the law being changed, but I was horrified that the law was changed not by Parliament but by jurisprudence. That was a fundamental change, it was a matter of principle, it was a 180 degree reversal of what had existed before. That seemed to me to be a decision which Parliament should be taking, not the judges.

Another case that shocked me very much relates to the law on the right to die Bill—not the Bill itself, which of course failed in the Commons recently, unfortunately, since I supported it strongly. That was the issue of what happens to relatives and close friends of people who are dying and want to terminate their lives more comfortably and rapidly by going to Switzerland or some other jurisdiction where it is allowed. Are the accompanying relatives or friends guilty of a criminal offence, of aiding or abetting suicide? That is a very important issue, raising all sorts of moral and social problems, as well as some technical, medical issues. It should have been debated by Parliament, and Parliament should have taken the decision. What happened there was even more shocking. It was not the jurisprudence or the judge that determined the issue but the prosecutors—the Director of Public Prosecutions. My right honourable friend in the other place is a man for whom I have the greatest regard, and I think that he took the right decision—but it was completely wrong to get to the point when prosecutors had to change the law. That must be wrong. So Parliament is not good at doing that fundamental job.

We have another case here in which we all agree that the situation is very unsatisfactory. I have always said that the situation is discreditable to Parliament that there should be such a mess as we find in this area of the law. It is very important that in future Parliament makes a conscious effort to do the essential job properly of revising the law from time to time, and not just waiting for the Law Commission to come up with proposals, because on occasions it is far too pusillanimous—and this is one of those occasions. It is our responsibility, ultimately, to decide these matters; it is not a responsibility that we have carried out very well but one that has certainly been taken up in the most proper and effective way by the noble Baroness, Lady Deech. I shall strongly support this Bill as it goes through its various stages, as I hope that it will from now on.