Divorce (Financial Provision) Bill [HL] - Second Reading

Part of the debate – in the House of Lords at 1:36 pm on 11th May 2018.

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Photo of Baroness Bottomley of Nettlestone Baroness Bottomley of Nettlestone Conservative 1:36 pm, 11th May 2018

My Lords, it is a pleasure to follow the right reverend Prelate. On this subject and so many others, we so value the Lords spiritual, who help us to set the tone. This is not only about the law but is much more profoundly about the sort of society in which we want to live.

Many have commented on the extraordinary changing demographics, attitudes and expectations of marriage, which makes this piece of legislation all the more complex and timely. I warmly welcome the comments made by the noble Baroness, Lady Deech, a long-standing friend of mine. Indeed, for exactly the qualities we have heard from her today, I invited her 20 years ago to become chairman of the Human Fertilisation and Embryology Authority, a role where attention to the law as well as to the ethics involved was critical. In many ways, that is what unites us today.

There is a wealth of wisdom and experience in this House, and of course I defer to the greater knowledge, wisdom and experience of the noble and learned Lords who spoke earlier. Indeed, I had to go and put on a little more lipstick before coming back in to speak, following the noble and learned Lord’s comments a few moments ago.

I was also particularly pleased to hear from my noble friend Lady Shackleton. Her wisdom and experience are all the more important, and her clarity about why the degree of discretion has become completely unjustifiable will have registered with us all. As a great fan as a child of Hughie Green’s “Double Your Money”, the words “Open the box or take the money” will stay with me for a long time. However, for many years I have been concerned with family law. In my early 30s, I was chairman of the Inner London Juvenile Court. When I first came to this House I was responsible for the implementation of the Children Act 1989, working closely with the former Lord Chancellor, my noble and learned friend Lord Mackay, and with a long-standing friend and associate now, the President of the Supreme Court, the noble and learned Baroness, Lady Hale, an early and very enlightened thinker on these subjects.

On one occasion I was about to have an Adjournment debate, after my ministerial life was happily over, which again was on a matter of family law and divorce, and I met my noble friend Lady Shackleton and started to cross-question her about divorce, what needed to be reformed and what should change. She entirely misunderstood my intentions and thought I was trying to winkle out some ideas about all her celebrity clients, about whom I knew very little at the time. However, I was preparing for an Adjournment debate, which, in the way of life in another place, started at half-past midnight, and I spoke about these matters. Yes, there has been progress but insufficiently so. The fact that we are debating these matters now in relation to a piece of 1973 legislation suggests a critical mass of weight behind the idea that there needs to be progress.

Having been married for 50 years—I agree with the saying “Murder often, divorce never”—as yet I have no personal experience of divorce, but, like others, I have been closely affected by the experiences of family, friends and far too many constituents. As an MP, I found that often the hardest, most painful and most distressing cases were those involving divorce. I echo time and again that the process often exacerbates the problem. How many people think, “Our marriage has come to an end. It’s not right for anybody that we carry on living together, but we want an agreeable and conciliatory divorce”? However, by the end of the process, if they had not deeply disliked each other at the beginning, all trust and optimism is lost.

It has been argued that since it has become relatively easy to divorce on a no-fault basis, the splitting of a very deep relationship will always involve acrimony and the intensity of feeling gets displaced on to the property or the children. I am not sure about that. Mediation, not having to go to court and proper information being available must all be better for those concerned. Reasonable expectations over fair-settlement outcomes can do much to ease the pain, and that is my understanding of a key purpose of the Bill.

Since the 1973 Act, judges have been presiding over divorce cases at a time of profound societal changes in practice and attitudes towards marriage. However, the argument is that these changes have not yet been addressed by appropriate legislative review and reform, and that has been repeated time and again today. The matrimonial landscape of the UK today looks very different from that of 1973. We have a seen a decline in overall marriage rates, a decline in the proportion of religious ceremonies, an increase in first marriages relative to remarriages, the introduction of marriage equality, and a dramatic increase in the age at which people marry. The average age in 1973 was 26 for women and 28 for men; by 2015 it was 35 for women and 37 for men, but those figures relate only to heterosexual marriages.

Reports on these trends from the Office for National Statistics are fascinating and particularly informative. However, as I said, despite the changes, judges have been left with essentially the same legislation as was put in place in 1973. The result is the institutionalisation of a system which too often creates confusion, unpredictability and cost, placing excessive interpretive responsibility on judges. The extent of judicial discretion is such that lawyers and, of greater concern, the high number of self-representing litigants find it increasingly difficult to form reasonable expectations about what a fair outcome might look like.

Of course, divorce affects people across the full socioeconomic spectrum. We have talked about high net-worth individuals—some of the celebrated cases. However, the lack of legal aid provision often leaves the less fortunate in an acutely difficult place, where any money spent will come from the long-term benefits they have accrued. It was recently reported by Citizens Advice that 90% of self-representing litigants say how negatively this impacts on aspects of their lives, such as their mental health, their working lives, their finances and their personal relationships.

In a previous debate on this subject and again today, the noble Baroness, Lady Deech, correctly identified that such uncertainty threatens our commitment to the rule of law—a vital pillar of our democracy. The law must be accessible, clear and predictable. To borrow words from the late Lord Bingham of Cornhill, former Master of the Rolls, Lord Chief Justice and senior Law Lord:

“The rule of law does not require that official or judicial decision-makers should be deprived of all discretion, but it does require that no discretion should be unconstrained so as to be potentially arbitrary. No discretion may be legally unfettered”.

It is now evident that change is called for. With judges playing a central part in applying family law, we need to listen carefully to more views from the judiciary on the nature and effectiveness of such reforms. I am not able to say whether the means are the precise way of addressing the ends. I think all of us in the House support the ends and I hope that, in Committee, we can look more carefully at the precise means by which to get there.

Divorce proceedings inevitably occur at an exceptionally stressful and emotional time for those involved and can bring exceptionally difficult consequences for the children. Parental divorce can be particularly traumatic for any child, representing a profoundly distressing and disruptive event in their young lives. However, the extent of this disruption can be dampened or exacerbated by the nature of the divorce, particularly by factors such as witnessing vitriolic settlement proceedings or uprooting them from the family home. On the whole, children can cope with single parents but struggle to deal with enduring acrimony. This is repeated time and again by a wealth of academic literature. Family conflict is a greater cause of depression, anxiety and low self-esteem than divorce. The consequences of parental divorce on children worsen depending on the degree of parental conflict. Marital conflict that is hostile, aggressive, poorly resolved or concerns the child is particularly destructive and upsetting for children. So apart from the individuals concerned, it is in the interests of children that we examine how the Bill will impact them. I should be grateful for further clarity on the extent to which binding prenuptial and post-nuptial agreements might infringe on judges’ flexibility to prioritise children’s needs.

Improving predictability on the settlement process is a valuable outcome. But what about the distribution of effects that the Bill is likely to have for those in marriages where there is economic inequality between spouses, as in probably the majority of cases? All will have read the comments of Dr Sharon Thompson, of Cardiff University, who said that removing judicial discretion may prove disadvantageous for the economically less-advantaged spouse by diminishing the judicial flexibility to meet their needs through the division of non-matrimonial property.

We must also be wary of inequalities at the point when a prenuptial or post-nuptial agreement is created. As I understand it, these agreements are likely to safeguard the income of the wealthier spouse without compensating their partner for potential career sacrifices which may, in practice, facilitate their partner’s higher earnings. The concern is exacerbated by the reality that the wealthier spouse is likelier to have superior leverage at the time of negotiating these agreements. I hope we can look at this and other matters. Will the Bill diminish the ability of judges to correct for these disparities, except in the prevention of “serious financial hardship”?

I admire and applaud the noble Baroness and all those who have rightly spoken about the purpose and principles of the Bill. The job of the House now, I believe, is to give it careful scrutiny to ensure that there are no unforeseen circumstances, complications or adverse effects, and that we genuinely move to a more civilised and enlightened divorce process, where dividing the spoils does not create greater acrimony than the divorce itself.