Divorce (Financial Provision) Bill [HL]

Lord Davies of Stamford Excerpts

Friday 21st November 2014 Lords Chamber

[Lord Davies of Stamford (Lab)]

The noble Lord said that one of the reasons why the Government would introduce the full setting aside of a prenuptial agreement would be “need”. If that is the case, would that not, first, have the potential to open up an area of great ambiguity and uncertainty because “need” would have to be defined very closely? Secondly, would there not be a real risk that “need” could be interpreted by a court as being the right to retain the same standard of living as had been the case when the party had been married, and that might be possible only by drawing on prenuptial, non-matrimonial property? That would undermine the whole purpose and force of the Bill. Will the noble Lord say a few more words about how the Government envisage defining the word “need” in this context?

[Lord Faulks]

The noble Lord makes an important point. What I did say was that the Government had not yet concluded how they proposed to respond to the Law Commission’s recommendations. The Law Commission has said that it considers it appropriate to override an agreement in some cases. I take entirely his point that if, as it were, the court is going to have a free rein to override an agreement simply because it thinks it fairer in the circumstances to come to a different conclusion, that would significantly undermine the degree of certainty which can be obtained by a prenuptial agreement. However, at the heart of what the Government will have to decide on this is to respect all the advantages that one can obtain from having a prenuptial agreement for the reasons that have already been outlined in the debate, yet not making it iniquitous in some circumstances—limited circumstances, I would imagine—where it is manifestly unfair for a party to be restricted by the scope of that agreement.