Divorce, Dissolution and Separation Bill [HL]

Lord Walker of Gestingthorpe Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Wednesday 5th February 2020 Lords Chamber

[Lord Walker of Gestingthorpe (CB)]

My Lords, I warmly welcome the Bill as the final step in the long and arduous process of getting away from the concept of the matrimonial offence, or, as the Minister put it, the blame game.

This problem has occupied law reformers and Parliament for well over a century and a half—to be precise, the 163 years since the Matrimonial Causes Act 1857. It would be a wearisome task indeed to go through every step of that history, but it is worth revisiting some of its high points, many of which were mentioned by my noble and right reverend friend Lord Harries of Pentregarth.

The 1857 Act, which first introduced divorce, properly so called, by a civil court, was opposed in this House by Bishop Samuel Wilberforce on the ground that he did not approve of divorce at all. It was opposed in another place by Mr Gladstone, then the leader of the Opposition, who very properly objected to its discriminating between husband and wife regarding grounds for divorce. A husband could petition on the ground of adultery by his wife. His wife could petition on the ground of his adultery only if it was of a particularly grave sort—involving either incest or bigamy—or if it had been accompanied by cruelty or desertion or both.

That particular injustice was not cured until 1910, but it continued to be the law that adultery was the only ground for seeking a divorce, notwithstanding the obvious attractions that that situation held as an encouragement to perjury and collusion. This was in the days when collusion, connivance, condonation and conduct conducing—fiercely overseen by the Queen’s or the King’s Proctor—were an absolute bar to divorce.

The fact that divorce could be sought on the ground of adultery and nothing else continued, astonishingly, until the late 1930s, despite its obvious drawbacks, given the amount of lying and deception that was involved. Two books published in 1934 had a great effect in moving public opinion. One was the novel A Handful of Dust by Evelyn Waugh and the other was Holy Deadlock by A P Herbert, which sold 90,000 copies and had the profound effect of bringing home to the public just what a sham divorce only on the ground of adultery had become. A P Herbert did not only write a book about it; he also stood and was elected as an independent Member of Parliament for the University of Oxford, which in those days had two seats allotted to it. In 1937 he drafted, fought for and ultimately won one of the most important ever victories for private legislation, which became the Matrimonial Causes Act 1937. That introduced the grounds of cruelty and desertion, which were enacted in 1937, consolidated in the 1973 Act, and remained until recent times.

It became apparent, however, especially after the war, that these grounds were insufficient. Many marriages were simply unhappy ones that ought to be brought to an end but were not covered by any of the grounds unless people started exaggerating their complaints of cruelty, building small troubles into large ones. As my noble and right reverend friend Lord Harries has said, this led to the emergence—particularly during the archbishopric of Archbishop Ramsey—of a concordat between the Church and the law reformers that there should be a movement towards the irreversible breakdown of marriage as the sole ground for divorce. The Act passed in 1964 aimed to do that, but although it said that the only ground was to be the irreversible breakdown of marriage, it then set out, as before, what that was to consist of: adultery, cruelty and desertion, adding only separation for two years or five years, depending on whether the respondent agreed to two years being sufficient. That Act, in a way, was three steps forward and two steps back. It introduced irreversible breakdown of marriage in theory, but in practice it added very little to the existing law.

That was the target of the Family Law Act 1996, which was brought before Parliament by my noble and learned friend Lord Mackay of Clashfern, to whom it has been a privilege to listen this evening. Part II, which was the essential part of the Act, had a curious history. It could not be brought into force at once because various trials of conciliation methods were being undertaken. The Government fell and a new Government came in. As the noble and right reverend Lord, Lord Harries, said, Mr Blair’s Lord Chancellor—the noble and learned Lord, Lord Irvine—first postponed, then ultimately decided to abandon, the whole of Part II. It was said that it would be repealed; it eventually was, but only by a statute in 2014—nearly 20 years after it was passed—without ever having been in force.

The principal aim of this new Bill is to bring back irreversible breakdown of marriage as the sole ground. It does that by completely replacing Section 1 of the consolidating Act. Whatever its drawbacks—some have been mentioned by speakers this evening—in my view it would be a great step forward. The drawbacks of the present system that it would remove are much greater than the drawbacks—serious though they are—that it may possibly entail.

In 1956 Lord Hodson, a Law Lord, said to the then sitting royal commission on marriage and divorce:

“The history of divorce is one of conflict between those who believe that divorce is an evil thing, destructive of family life and accordingly of the life of the community”—


no doubt all that is true—

“and those who take the ‘humanitarian’ view that when a marriage has irretrievably broken down it should be dissolved.”

Lord Hodson put “humanitarian” in inverted commas —or at any rate, the transcriber of his address did—which suggests that he took the traditional side in the conflict. I urge your Lordships to take a more enlightened view and to welcome this Bill.

That is all I have to say for myself, but perhaps I could be permitted to say that last night, at a very late hour, I received an email from the noble Baroness, Lady Deech, whose name has already been mentioned this evening, to say that she was in the United States. She very much regretted that she was not able to participate in this debate and sent me four pages of what she would have said if she were here. I have no intention of reading even one of those to your Lordships, but it is perhaps right to mention that she may well intervene at a later stage in the passage of the Bill to suggest that more should be done to bring the financial provision that can be made on divorce in line with the new change in the grounds for divorce. That would go some way to meeting the points raised by the right reverend Prelate the Bishop of Portsmouth and the Liberal Democrat side. However, that is a matter for a later stage.

Divorce, Dissolution and Separation Bill [HL]

Lord Walker of Gestingthorpe Excerpts

Committee stage & Committee: 1st sitting (Hansard - continued) & Committee: 1st sitting (Hansard - continued): House of Lords
Tuesday 3rd March 2020 Lords Chamber

To that end, I have tabled this amendment requiring the Government to carry out a prompt review of our law on financial provision and to consider a more certain, less costly regime, with priority for children up to 21 and, like Scotland, a statutory basis for prenups, equal division of assets and shorter-term maintenance. The opposition to any reform comes principally from the Bar. I have been talking about this for 40 years and am yet to hear a member of the Bar come forward with a single proposal for reform in this field. I know why; I am sorry to say that there is a section there with a vested interest in keeping the law as uncertain and unpredictable as it is. I get letters from the public only begging for reform whenever I call for it in public. I hope noble Lords will support it.

[Lord Walker of Gestingthorpe (CB)]

My Lords, the noble Baroness, Lady Deech, has spoken so fully and clearly on her amendment that it is difficult to find much to say in support of it without repetition. However, three points are entitled to a bit of expansion or repetition: first, prenuptial agreements; secondly, the extraordinary flexibility—or, one might say, disarray—of the reasons the court has to take into account at present in making a financial provision order under Section 25 of the Matrimonial Causes Act 1973; and, thirdly and lastly, the suggestion, which the noble Baroness modestly did not refer to, that her drafting of this amendment shows a degree of favour for her own preferred solution to the very difficult problem of general rules for financial provision.

I will take these points in turn. First, on prenuptial agreements, in the early days of divorce, the notion that an engaged couple might think about and discuss a future divorce was regarded as so shocking that it was ruled in English law as a matter of public policy that a prenuptial agreement was unenforceable. That rule has gradually diminished in importance and has certainly now disappeared, as was confirmed by the Supreme Court of the United Kingdom in the important case of Radmacher v Granatino about 10 years ago. What the Supreme Court did in Radmacher v Granatino was to take account of the premarital agreement, not to enforce it.

The suggestion is—and it is a powerful suggestion—that the courts should now go further and treat any premarital agreement as to the division of property and resources on divorce as being valid and enforceable so long as it was entered into fairly and so long as it was based on full disclosure of assets by each side of the marriage and full access to independent legal advice for each partner to the marriage. The Law Commission has made a very clear recommendation to that effect, which was in striking contrast to its failure to agree any other part of the changes that might usefully be made to financial provision.

Secondly, turning to the court’s discretion under the existing law as to what financial provision to make, there is an extraordinary provision that has been in force for many years. Section 25(2) of the Matrimonial Causes Act 1973 sets out a confusing list of eight disparate factors with no clear hierarchy or pecking order between them and no clear guidance to first-instance judges as to how they are to take account of these eight disparate factors in ordering financial provisions. Moreover, these eight factors were there long before 1973, since the 1973 Act was, of course, a consolidating Act. It has been very difficult to provide reliable and clear guidance to first-instance judges who have had to deal with these matters, sometimes on inadequate presentation of the facts and considerations in order to do justice.

In the case of White v White, which was decided about 20 years ago, the Law Lords, as they then were —and since then the Supreme Court—did their best to spell out, of the eight disparate factors, some sort of coherent code to be followed. The top court of this country has made heroic efforts to do that, but the result has been, I regret to say, singularly disappointing. It is also necessary to try to relate these factors, which have been part of the law for half a century, to the very different social conditions that we have today.

Surveys and research undertaken by numerous bodies—some working in conjunction with the Law Commission—have shown that there are wide variations in the way the eight factors in Section 25(2) are applied in different parts of the country and by different judges in the same parts of the country. That is not good for the administration of justice. It adds further stress and expense to what is in any event a sufficiently stressful and expensive procedure, especially if one has to take account of the possibility of appeals to higher courts because of the different ways in which the discretion is exercised. By contrast, the new rules for financial provision in Scotland, which are much clearer and which limit much more the extent of judicial discretion, are working well, as a recent survey has revealed.

Thirdly and finally, it has been suggested—I think politely—that the noble Baroness’s amendment is tilted in favour of her own views as to the amendments that should be made to the law. One simple answer to that is that it would be unsurprising if that were so, because she has of course spent a great deal of time thinking about it. However, she has been somewhat modest about the fact that they are not only her own views. The points mentioned specifically in her amendment, including the rule on prenuptial agreements, are not simply her thoughts. She was too modest to mention the fact that they have been embodied in two Bills which passed twice through all stages in this House without a single adverse vote, but which have never passed into law because neither Bill succeeded in finding a sponsor and getting through the House of Commons before the end of the relevant Parliament. Therefore, the matters specified in the amendment reflect the views which have twice been before this House and which have twice been approved by it, without becoming law. I support the amendment and commend it to your Lordships.

[Lord Beecham (Lab)]

The provisions of Amendments 7 and 17A clearly relate to an important aspect of matrimonial proceedings; namely, the financial settlement. The amendments seek to ensure that there are no discussions about such financial settlements for 20 weeks unless both parties agree. However, does this not illustrate the need for legal advice to be available to the parties, or at any rate to at least one of the parties, in the situation of a divorce? I understand that attempts were made to amend the Bill in that respect, but it was ruled that it was not possible to do so. However, will the Minister undertake to look again, or to persuade his colleagues in the Government to do so, at the issue of providing legal aid for matrimonial matters, particularly of this kind, where one party may well have insufficient resources to procure the necessary advice in this important area of the consequences of a divorce?