Divorce (Financial Provision) Bill [HL]

Lord St John of Bletso Excerpts

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

[Lord St John of Bletso (CB)]

My Lords, I join in warmly supporting my noble friend’s Bill and her efforts to reform and bring more certainty to the financial provisions in Section 25 of the Matrimonial Causes Act 1973.

I was encouraged by the recent publication, just two Fridays ago on 13 January, of the report by the Ministry of Justice on the implementation of Law Commission proposals. I note that the Family Justice Council has developed and introduced financial guidance for separating couples and unrepresented litigants. I also note that the Ministry of Justice is working to develop an online tool, supported by formulae, to assist separating couples and clarify how to make financial arrangements on divorce. I had hoped that the publication would give a clearer commitment to legalise a binding form of prenuptial agreement. I hope that the Minister will give us some guidance on whether this may be forthcoming in the future.

I speak from a personal background of having specialised in family law in South Africa, where I practised as an attorney under the Corpus Juris Civilis—Roman Dutch law—which is very similar to Scottish law, where antenuptial agreements are binding and where there is a clear framework for the determination of financial settlements. As all speakers have mentioned today, this Bill is to a large degree crafted on Scottish law. For that reason, I warmly support it as it is far more efficient, less expensive and less stressful for children.

Clearly, there is a need to provide clearly defined guidelines for divorcing couples and move away from the precedent of largely judge-made law, which bears little resemblance to the statute, which frankly is outdated. Even though the divorce rate continues to fall, almost a third of the 110,000 divorces in England and Wales every year go to court for financial orders. That overloads the divorce courts, causing lengthy delays, stress and, again, excessive costs. I entirely agree with my noble friend that long drawn-out divorces are highly detrimental to children. As my noble friend Lord Carlile mentioned, hard-earned family assets are often lost as a result of the litigation costs.

I therefore wholeheartedly support Clause 3, which makes pre-nuptial and post-nuptial agreements binding, as long as both parties receive independent legal advice and make full disclosure. I also agree that there is no evidence that marriage breakdown is encouraged by pre-nuptial or post-nuptial agreements. If enacted, an added benefit of the Bill would be to provide better opportunities for mediation, which we all support. I am grateful for the useful research note that we received from the Library, in which reference was made to the then Minister, the noble Lord, Lord Faulks, who expressed concerns in Committee on my noble friend’s similar Bill that:

“The Government are not convinced that the certainty that the Bill and these amendments intend to provide would not come at too great a cost in rigidity”.—[Official Report, 21/11/14; col. 629.]


I am sure that when the Bill, I hope, comes to Committee, there may be scope to amend Clause 5(1)(c), for example.

In conclusion, I congratulate my noble friend on her tenacity in promoting the Bill and wish it a speedy passage through your Lordships’ House.