Divorce (Financial Provision) Bill [HL]

Lord Scott of Foscote Excerpts

Friday 27th June 2014 Lords Chamber

[Lord Scott of Foscote (CB)]

My Lords, I address your Lordships as a lawyer who is interested in the Bill, although in practice I did nothing in this particular field. The interest for me is provided only by a general interest in the law.

The problem with this area of the law is that it tries to deal with a situation in which two individuals, who know one another very well and have probably lived together for some time, are in dispute because their relationship has broken down. They have to come to decisions about what is to happen to them and to their respective lives, to their children—if they have any—and to the assets they have accumulated, because they are almost bound to have accumulated some. That happens at a time when their personal relationship has broken down. There is everything to be said for encouraging the use of prenuptial—and, indeed, post-nuptial—agreements, and everything to be said for making them. However, if they are to be made binding, it is essential that they be put in writing. If they are left as oral agreements, they will simply be another bone to be chewed over by the two parties: “I agreed this—you agreed that”. Long ago in this country it was decided that contracts for the disposition of an interest in land had to be put in writing. I am sure that those sorts of considerations were the reason for that. We have all become very accustomed to contracts that relate to land being in writing, and the same reasoning should apply to prenuptial and post-nuptial agreements; otherwise, they will be just another basis for further litigation between the disputing parties.

It has to be recognised that there is always a tension in deciding what the statutory framework should be for the management of the affairs of the disputing couple post marriage. There is a tension between certainty on the one hand and fairness on the other. Certainty can be achieved by careful drafting of legislation, but fairness depends on the circumstances of the individual case. However, individual cases and people are different, and people have different problems. The greater the certainty, the more likely that the rigidity of whatever the certain system is that has been decided upon will produce, in some cases, unfairness for one or other of the spouses. That is the justification for giving the judges the huge amount of discretion they have under the present statutory framework. Maybe that leads to more dispute and litigation than is desirable; maybe the judges should not have so much discretion. To introduce more certainty or cut down on the discretion would be at the expense of fairness. That is a very difficult balance to strike. The advantages of certainty will not solve satisfactorily all the problems, because the same answer does not necessarily produce fairness for everybody. That is a matter to be considered when one comes to look at the wording of the provisions in the Bill. Perhaps that is not a point for Second Reading, but it should always be borne in mind.

On the Second Reading question, it is clear that the Bill should have one. I join noble Lords in congratulating the noble Baroness on putting the Bill forward. It will require a lot of thought and attention in Committee, but there should certainly be a Second Reading, and there should certainly be agreements in writing. There is another provision in the Bill where agreements are referred to; all the agreements that are referred to in the Bill need to be in writing, so that there can be no dispute between the parties as to what they agreed.