Divorce

Lord Davies of Stamford Excerpts

Monday 18th October 2010 Lords Chamber

[Lord Davies of Stamford]

My Lords, having heard the lucid and persuasive speech of the noble Baroness, Lady Deech, I wanted to take the opportunity to rise in support of what she said. We all know that the divorce law at present is complete chaos. From time to time, what has appeared to emerge from the jurisprudence as a guiding principle, like the 50:50 rule or the clean-break rule, has for some reason subsequently been set aside at the next judicial decision, so there is simply no clarity. The present system could hardly be better engineered if it were designed to maximise uncertainty and, therefore, legal costs. Some cynics would say that there is a certain category of humanity that would be very attracted to a model of that kind, but far be it from me to make such a comment myself.

The present situation with general divorce law seems to be difficult. The solution must be, as the noble Baroness has suggested, to look for some guiding principle. Perhaps we should look for that guiding principle in the Roman law examples on the Continent. I think I am right in saying that in some Continental jurisdictions, parties have a choice of regime: they can choose communauté de biens, which rather corresponds to what the right reverend Prelate was talking about a moment ago—“Everything I have, I give you”—or séparation de biens. In Scotland, we have an example of a Roman law jurisdiction that has adopted the séparation de biens principle, which is that when you enter into a marriage you keep separate everything that you bring to it, and the only assets or revenues that can subsequently be divided are those that have been accumulated since the marriage. That needs to be looked at; I understand that it is a model that works reasonably well north of the Border. I do not want to decide today what the solution should be, though; I merely urge that it is our responsibility to find one.

With regard to prenuptial agreements, I congratulate the noble Baroness on her brilliant timing: we are expecting a judgment this week from the Supreme Court on this matter. The situation with regard to such agreements is equally confused and equally unacceptable: we have a divorce law that takes one view about prenuptial agreements but which is overridden by the Appeal Court, and then we might have a third view from the Supreme Court. That is not the ideal model of the rule of law that we in this country are committed to. Some years ago in the House of Commons I introduced a Private Member’s Bill that would have given legal force to prenuptial agreements, and as a result of today’s debate I am inspired to see if I cannot relaunch an initiative of that kind with similarly minded colleagues in this House.

It has been overwhelmingly demonstrated by today’s debate that it would be a clear abdication by Parliament not to look at this matter again. After all, we are responsible if a law is chaotic, if the jurisprudence is unclear and if judges find it impossible to give judgments that have any degree of consistency or continuity or that would give the jurisprudence some degree of predictability and understandability. That is clearly the case, and that is when the legislature needs to intervene. It is why we have a legislature; it is why we come to this place and why people go to the House of Commons. I hope that before long it will be possible for us to take another look at this, to examine it in the round and to give it the deep attention that the subject deserves. I hope to do a good day’s work by Parliament in that context as a result.

--- Later in debate ---

[Lord McNally]

I fully understand and accept that. Things have changed a great deal in the past 40 years, but a lot of things have stayed the same. We have to take both realities into account. In terms of divorce, the lower down the social scale—if that is the right description—the less things have changed. I can quite imagine that the qualified professional woman is able to re-establish herself very quickly. The woman who has been holding a family together but is very much dependent on a male breadwinner is in a very much different situation. I just make the point that when we are looking at reform, we have to ensure, as our system does, that judges consider three principles—need, compensation and sharing, shaped by the overarching requirement for fairness. Each party is entitled to an equal share of the assets of the partnership unless there is good reason to the contrary, but the yardstick of equality is to be used as an aid, not as a rule. Any decision will be based on individual circumstances and needs. The court does not impose a one-size-fits-all solution. Consideration will be given to the potential earning capacity of both parties. Spousal maintenance orders can be conditional and time-limited, ending in any case if the recipient marries again. One-third of divorced couples make an application for ancillary relief, but a large majority of them seek simply a consent order.

Mention was made by, among others, the noble Lord, Lord Grantchester, and the noble Baroness, Lady Deech, of prenups. We await with interest Wednesday’s ruling of the Supreme Court in Granatino v Radmacher. At present, the courts can take into account prenuptial agreements as part of the balancing exercise that judges must undertake in ancillary relief proceedings under Section 25 of the Matrimonial Causes Act 1973. The judges can still apply discretion—

[Lord Davies of Stamford]

I am grateful to the noble Lord for giving way. He has read out a list of the various arguments and considerations that the courts, under the Matrimonial Causes Act, can take into account, including—to the extent to which they may wish to do so—the existence of a prenuptial agreement. Would he not agree that the problem is that because there is such a range of criteria, principles and precedents, it is impossible in any one case to give professional advice or predict what the likely outcome, or weighting between those considerations, will be? Would he not agree that a law that is not clear is a bad law?

[Lord McNally]

Certainly, a law that is not clear is a bad law. That is why we will consider carefully the outcome of the Supreme Court decision, and then the recommendations of the Law Commission, which will look at reforming the law. I hope that we will be able to do that with some urgency.

Another issue raised was that of “the divorce capital of the world”. The term has gained traction mainly because of some high-profile cases with large sums involved. However, I noted a comment by Lord Justice Thorpe, who said:

“There are only 17 judges of the family division”—

of the High Court—

“whose primary responsibility is to justice domestically. There they operate under great pressure of work. I question whether there should not be a more stringent allocation of judicial time to cases such as this where the parties have slender connection with our jurisdiction”.

As I said, there has been criticism of the system by the judiciary as well as by those who have to go through it.

Another point made by the noble Baronesses, Lady Deech, Lady Meacher, and Lady Murphy, concerned the issue of mediation. My colleague in the other place, Jonathan Djanogly, said the other day:

“Too often people in family breakdown situations use court as the first answer when they shouldn't. Often it's dealing with contact with children or intimate personal relationships that really shouldn't be going before the courts”.

The Government's view, which is shared by the noble Lord, Lord Bach, is that there is a prospect of putting forward mediation as an alternative to expensive and emotionally charged court proceedings. It is an interesting fact that about 70 per cent of publicly funded cases in which mediation is attempted end up with a successful outcome reached away from the courts, and 60 per cent of publicly funded parties who learn about mediation end up with a successful outcome reached away from the courts. The figures for self-funding parties are similar if not higher. In looking at reform, the Government and many outside experts believe that we should publicise mediation and encourage it to be used much more than it is at the moment.

The contributions from all sides have indicated that our law is in need of examination. That examination is under way: the Supreme Court is considering prenups, while the study group and the Law Commission are also looking at the issue. We hope that, in 2011, those findings and studies will come together, which may be an opportune time to look at a range of reforms to our divorce law, so that it meets real needs and many of the criticisms that have been voiced today.

Again, I thank the noble Baroness, Lady Deech, for raising this issue. I cannot give a snap answer to the question that she has raised in this short debate, but I hope that I have given a sense that we are continuing the initiatives of the previous Administration with a sense of urgency and that we shall look at the matter when the various studies come to fruition.