Divorce (Financial Provision) Bill [HL]

Lord Walker of Gestingthorpe Excerpts

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

[Lord Walker of Gestingthorpe (CB)]

My Lords, I strongly support the Bill. I shall be brief partly because time is limited but also because the noble Baroness, Lady Deech, has explained so clearly and cogently the case for her Bill. Having said that, I cannot resist making one comment on the interesting speech of the noble Lord, Lord Kirkhope of Harrogate.

The Bill that became the Matrimonial Causes Act 1857 was opposed in the other place by Mr Gladstone on the very proper ground that it discriminated against wives as compared with husbands as to the grounds for divorce. It was opposed by Bishop Wilberforce of Oxford in this House because he did not approve of divorce. The question of financial provision did not arise in 1857, because the property of every married woman, unless protected by equity, had vested in her husband on marriage. That continued to be the position until the Married Women’s Property Act 1882.

Returning to the Bill, I shall be brief, but I emphasise the uncertainty of outcome under the present law. It depends on the exercise of a very wide judicial question, depending on a number of factors between which there is no hierarchy established by statute. Such a wide discretion is not, and cannot be, exercised in a uniform and predictable way. That has been confirmed in the latest reports from the Law Commission. It cites well-documented fieldwork which shows variation between different judges, different groups of courts and different regions of the country.

It is true that, from time to time, general guidance to judges has been given by the court of last resort. That is now the Supreme Court; before 2009, it was, of course, this House acting in its judicial capacity. Inevitably, the cases that go to the court of last resort, cases that are sufficiently robust in terms of money to stand two appeals, are very much the exception. They are the biggest of the so-called big money cases and are by no means typical of the problems of ordinary married couples.

As the noble Baroness, Lady Deech, said, civil legal aid is no longer available for divorce, except where children are concerned or in cases of domestic violence. The costs of legal advice and representation and court fees—which I emphasise—rise inexorably. The court’s discretion as to how the costs are to be borne is a further uncertainty in the matter. Of course, the judge’s discretion, both as to the order he makes and the order he makes on costs, must be exercised judicially, but judicial exercise of discretion still gives great room for unpredictable outcomes.

The financial outcome is so unpredictable in contested cases that it is hard—I would go so far as to say impossible—for judges to give confident advice on the outcome. That makes expensive contested proceedings more likely, because the parties cannot be advised sensibly what would be a proper settlement. Divorce is often traumatic enough without the whole family’s resources being depleted by swingeing legal costs.

The Bill would authorise antenuptial settlements, subject to appropriate safeguards. There are appropriate safeguards, but I believe that the noble Baroness, Lady Deech, is of the view that it is desirable that those safeguards should not be too complicated or too many, because the more grounds there are for challenging an antenuptial settlement, the more there will again be expensive contested proceedings. In the absence of such agreement, it would introduce new rules similar to those which are working very well in Scotland. The new rules would limit judicial discretion and make the outcome more predictable, reducing the volume of contested proceedings. The principle is made very clear in the Bill that the needs and rights of children of the marriage will always, as before, continue to take priority. I commend the Bill to your Lordships’ House.