Divorce (Financial Provision) Bill [HL]

Lord Mackay of Clashfern Excerpts

Friday 27th June 2014 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I strongly support the Second Reading of the Bill. I am delighted to see my noble friend Lord McNally back with us today, with his expertise on this subject.

There is no question that divorce, or the break-up of a civil partnership, produces a great deal of difficulty for both parties. In the case of divorce where there are children of the marriage, it is a terrific burden on the children. Usually the breakdown is preceded by difficult times for the children as well as for the adults, and the longer the argument lasts after the initial breakdown, the greater the damage that is done to the children as well as to the two participants in the original union.

There is a great deal to be said for judicial discretion, fitting for every single case, according to the decision of the particular judge. But I strongly take the view that there should be a clear framework that people who do not need to go to a judge will be able to operate for themselves. In my view, the proposals that the noble Baroness has put forward in her Private Member’s Bill are very suitable for that purpose. They give a framework to separating couples for what should happen in relation to the issues that are likely to divide them. Of course, the Bill does not deal with questions of care and custody of the children and so on, but it does deal with the essential area of the division of assets, with provision after the separation or divorce for other kinds of maintenance.

I strongly submit to your Lordships that the matters that the Bill deals with are all a good way forward. It is true that the Law Commission has this in hand, but—I was a member of the Scottish Law Commission for some time—the Law Commission’s way of working is not always conducive to speedy results. Thoroughness often leads to that difficulty. I agree with the noble Baroness that we really cannot wait for perfection; we can have a reasonable arrangement now which people who are in this situation can look to and on which they can build to frame their own settlement.

I have always had difficulty in seeing why prenuptial and post-nuptial contracts are thought not to be binding. After all, the atmosphere before the marriage is usually the best atmosphere possible for reaching agreement. If agreement is reached then surely there is a lot to be said for giving effect to it. Why should subsequent changes make a big difference? Now, of course, there are agreements and agreements, and various kinds of undue influence can arise, but these are not at the essence of the matter. If the agreement is not vulnerable to that kind of attack, I cannot see why it should not bind the parties when the issue has arisen for which the agreement provides.

As the noble Baroness said, many of the other provisions in the Bill have operated in Scotland for quite a number of years. While I cannot always say that what is good for Scotland is necessarily the best for the other parts of the United Kingdom, on the whole that is a reasonable proposition. That the arrangement has gone forward there without much litigation suggests to me that it is acceptable to ordinary people who find themselves in this situation. Of course, the huge assets of some splitting partners are such that any kind of general scheme probably would not work, but so far as the vast majority of people are concerned, it seems to me that it would work, and the sooner it is put in place, the better.

An attempt was made towards the end of consideration of my Family Law Bill in 1996 to deal with this matter, but unfortunately there were so many other items of contention in that excellent Bill that it was rather difficult to deal with everything. Anyhow, the opportunity is here now and, for my part, I strongly urge this House to take it.