Marriage

Lord Marks of Henley-on-Thames Excerpts

Thursday 10th February 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I add my thanks to the right reverend Prelate the Bishop of Chester for securing this debate and for his eloquent support of marriage. I also say how delighted I am to be speaking in this debate with my noble friend Lady Tyler of Enfield, who will make her maiden speech.

Before I come to my main point, I make two others. The first concerns education in relation to marriage and relationships in schools, where it all starts. Although an Ofsted survey in 2009 found a great improvement in that area, with the majority of schools making provision within the personal health and social education curriculum that was either good or outstanding, a significant proportion of schools surveyed had inadequate teaching, insufficient time and, consequently, a poor level of understanding of marriage and relationships among their pupils. Much more needs to be done in that area, and I hope that it will be.

The second point concerns cohabiting couples. Sir Nicholas Wall, the President of the Family Division, was widely reported last week as saying he believed that cohabitating couples should have the same rights upon breakdown as married couples. Sir Nicholas was kind enough to speak to me about this last night, and he did not say that. To be fair to the Times, which interviewed him, it was not the Times that misreported him. He merely said that the proposals of the Law Commission in 2007 to give a right to limited relief to cohabiting couples on breaking their relationships should be implemented to right a significant injustice with the present law. It is important, if we are properly to support the institution of marriage, and civil partnerships for that matter, that we give the voluntary long-term commitment to mutual support that is fundamental to marriage the separate and distinct importance that it deserves, leaving those who choose to live together without making that commitment free to do so.

My main point relates to prenuptial agreements. The Supreme Court’s widely reported decision in Radmacher v Granatino has changed English law which previously rejected such agreements. In that case, as is well known, the French husband of a German heiress left investment banking to become a student again. On divorce he claimed a share of her fortune. She relied on a prenuptial agreement. The Supreme Court swept away the old law, the noble and learned Lord, Lord Phillips, saying that the courts should in general give effect to a prenuptial agreement if it is freely entered into by each party with a full appreciation of the implications, unless in the circumstances it would not be fair to do so. He added that the interests of children should not be prejudiced and pointed out that time and unforeseen circumstances may affect the question of fairness.

That decision has been widely welcomed by wealthy families keen to protect their young from those they see as gold diggers. But there is another view. Prenuptial agreements can be oppressive and threaten the long-term fundamental commitment to mutual support involved in marriage that I mentioned earlier. Radmacher had unusual facts and demonstrates the adage that hard cases make bad law—and, I would suggest, the principle that wholesale change is best introduced by Parliament after full and wide debate, rather than by judges necessarily and inevitably concentrating on the facts of the cases before them.

Noble Lords may find profoundly unattractive the notion of a wealthy husband placing the ring on his bride's finger with the time-honoured words, “With all my worldly goods I thee endow”, with the other hand firmly behind his back, fingers crossed, and thinking, “subject to clause 2 of the contract we signed last week by which you get nothing”.

Prenuptial agreements threaten the concepts recently and carefully developed by the courts of fairness, sharing and compensation which have massively helped wives who have given up careers to bring up families and be home-makers, enabling their husbands to go out and earn. As the noble and learned Baroness, Lady Hale, said in dissent in Radmacher, there is a gender dimension to this issue perhaps not best decided by a court of eight men and one woman. I fear that the decision may lead to an unfair two-tier system: one set of rules for those tough and worldly enough to impose prenuptial agreements on their weaker and more romantic fiancées, and another set for the rest.

The Law Commission has produced a consultation paper following Radmacher and, at the very least, some of the ideas canvassed in its paper should become law: legal advice should be essential; full financial disclosure should be required; the birth of a child should markedly diminish the effect to be given to the agreement; no agreement should be enforced if either party would be left unable to meet his or her reasonable needs; and the longer the marriage the less significant the agreement. These would be important safeguards that might alleviate the dangers. But at the moment this is a dangerous area for marriage, and one on which the law now is left very unsatisfactory.