Divorce (Financial Provision) Bill [HL]

Lord Kirkhope of Harrogate Excerpts

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

[Lord Kirkhope of Harrogate (Con)]

My Lords, first, I refer to my entry in the Members’ register of interests as a practising lawyer—but not, I must emphasise to the noble Baroness who has just spoken, a divorce lawyer in recent times, so my vested interest does not extend to the things that she suggested a lot of lawyers might be thinking about in discussing this matter. I am here to urge some caution, based on my own experience, not only as a practising lawyer who has had contact with family law matters but also as a former Home Office Minister aware of the effect of legislation and the importance of considering it and sometimes protecting oneself from it.

This is a very interesting subject and we need just perhaps to be slightly historical—not hysterical, but historical. Before 1857, the whole issue of divorce was entirely in the hands of the Church and it was not until the Matrimonial Causes Act 1857 that it was possible to have divorce in the secular courts. Indeed, all the matters relating to financial provision and the like had to take a much lower position in the considerations that followed. It was not until 1937 that a further Matrimonial Causes Act was introduced, which in context allowed other grounds, and very strict grounds for adultery, to be used for the separation of parties in divorce actions.

I remember in 1969, when I was an articled clerk, the Divorce Reform Act. My old law lecturer, Bernard Passingham at Guildford, wrote the best book on the subject. We dealt with remaining divorces only on grounds of irretrievable breakdown, with no fault on either side—no fault in terms of the legislators, perhaps, but not necessarily reflected in the views of couples who were coming to divorce.

The Matrimonial Causes Act 1973, in which the noble Baroness, Lady Deech, wishes to repeal Section 25(2), is in my view an important piece of legislation, which I believe in general has been very successful. There are of course well-known cases where there have been areas of despair—concern that abuse has taken place and so on—but I still believe that the wideness and flexibility of that Act is its most important aspect, along with its consideration of the needs of a child or children to be most important. I fear that the proposals by the noble Baroness will to some extent take away the priority of our need to consider children.

In 2004 Lord Justice Thorpe, in a case called G v G, said that, using the width of discretion available to him under Section 25, the judge could balance conduct against the shortness of marriage, adding in a wife’s contribution and essentially having flexibility in determining financial matters. Indeed the 2014 Law Commission, to which the noble Baroness has referred, made this statement in the context of the financial settlements:

“The objective is, and should be, to enable the parties to make a transition to independence, in a way that takes account of the choices made within the marriage or civil partnership, its length, the parties’ ongoing shared responsibilities (for example, for any children), the need for a home and the standard of living during the relationship. We think this is what, for the most part, the courts are doing anyway”.


Despite concerns in some areas, I believe it is important that we maintain that flexibility. I therefore fear the rigidity of these proposals and the danger that the repeal of this part of that Act would not serve the purposes of giving extra flexibility.

I shall refer, if I may, to prenuptial agreements, which are also part of the noble Baroness’s proposals. There are concerns regarding these agreements, which have grown in number extensively over the last few years. Yes, they are often a good idea, but it is important that we follow the terms that were referred to—there are other speakers in the Chamber today who will have much better knowledge of the Supreme Court than I do—in October 2010 in the case of Radmacher v Granatino, when it was said that prenuptial agreements are fine but there has to be a set of principles to have them drawn up in a proper manner if they are going to be upheld in the courts. That covered a number of things but it also included whether the terms of the agreement meet everyone’s needs, including those of the children.

I come back to children in my remarks because I think that they are important. This is what worries me in scrutinising these proposals: we have to be sure that the priority of children remains. Nothing—no deals, no agreements—must get in the way of the consideration of children, who are the ones, despite the suffering of the parties themselves, who suffer the most in society. Our duty is to protect them.