Divorce (Financial Provision) Bill [HL]

Lord Kennedy of Southwark Excerpts

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

[Lord Kennedy of Southwark (Lab)]

My Lords, like other noble Lords, I congratulate the noble Baroness, Lady Deech, on bringing forward her Bill and securing a Second Reading. The Bill proposes to amend Section 25 of the Matrimonial Causes Act 1973 and replace it with a series of principles that would apply in the determination of applications for orders in divorce, including prenuptial and post-nuptial agreements.

I am not a lawyer, so I have come to the Bill as a lay person. I looked at what marriage is: it is, of course, an agreement by which two people enter into a certain legal relationship with each other that creates and imposes mutual rights and duties. However, when you look carefully, it is a contract—a very special contract—that comes into force if special formalities are observed and, apart from death, can be set aside or terminated only by a court of competent jurisdiction. People enter into this contract because they love each other, want to be with each other and want to make a life together, possibly with children.

Marriage as an institution is something that Members on these Benches fully support. We believe that it is one of the bedrocks of stable relationships and society. We are very proud on these Benches that we introduced civil partnerships for gay people some years ago, and that we fully supported the then coalition Government, in the last Parliament, when they decided to introduce equal marriage for gay people. We did that because we agreed with the Government that marriage is an important institution and that gay people have the right to be treated exactly the same, and to enjoy the same benefits and to face the same challenges in the society of which they are equal members. It is something that I very much wish was on the statute book in Northern Ireland.

I then looked at what exactly divorce means. It is, of course, the termination of a marital union and the cancelling and/or reorganising of the legal duties and responsibilities of marriage. I found it interesting that, with amendments over time, we are using an Act that, although ground-breaking at the time, came on to the statute book 44 years ago. That may not be long in terms of legislation, but divorce is a live issue affecting thousands of people every year, either as divorcing spouses or as their children. I reflected on how different the UK is today from 1973. On these Benches we welcome the Bill and believe that it is timely. I give my support to the Bill.

Clause 2 provides that either party subject to proceedings for divorce may apply to a court for an order in relation to matrimonial property only. Legislating on an approach to the division of assets would certainly provide greater certainty for separating couples, and we want to see some safeguard to make sure that the economically weaker spouse is protected.

Clause 3 would make prenuptial and post-nuptial agreements binding on the parties, subject to a number of exceptions and safeguards. Binding agreements could provide couples deciding to marry with the ability to plan with more certainty. I can see the argument that it would bring into full view the potential costs to each party, that significant money could be saved in lawyer and court costs and that it could take some of the hostility and bitterness out of the process for the divorcing parties.

I also understand that in many other jurisdictions, as we have heard, prenuptial and post-nuptial agreements are very common and that in many such cases they have much lower divorce rates. We should examine carefully the proposals and test the competing arguments that on the one hand it would undermine marriage and on the other that it would strengthen it. Clauses 4 and 5 propose that the net value of the matrimonial property is shared fairly between the parties. The proposals seek to limit costly litigation by providing a process for asset division. They seek to remove or certainly limit the role that the court plays in deciding the appropriate division of assets and maintenance.

The Bill seeks to deal with important issues and to find solutions to situations that are far from satisfactory at present. I have highlighted some of those issues. I believe that if the Government are fair and reasonable, the Bill could make progress through your Lordships’ House. As an Opposition, we are happy to support it. I should say that I am not a lawyer and I have no interest in the Bill. I am happily married and have never been divorced—and I am not looking to get divorced. I was getting a few funny looks this week when I sat at the kitchen table reading papers on divorce.

In closing, I bring to noble Lords’ attention that, although it is not proposed here, there is nothing in the rules of the House to prevent the Bill going to a Grand Committee in the Moses Room rather than coming to the Floor of the House and disappearing, never to be seen again. As the noble Lord, Lord Carlisle, said in an earlier debate, many Private Members’ Bills do a lot of good and we need to find a way to move them on.