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

Part of the debate – in the House of Lords at 1:48 pm on 11th May 2018.

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Photo of Lord St John of Bletso Lord St John of Bletso Crossbench 1:48 pm, 11th May 2018

My Lords, I join others in thanking my noble friend Lady Deech for her tenacity in reintroducing this much-needed Bill replacing Section 25(2) of the Matrimonial Causes Act 1973. It is well accepted that reforms of our divorce laws are long overdue, supported not just by the Law Commission proposals but by Resolution and the Centre for Social Justice.

Coming at the end of the batting order, I fear that almost every point I will make is a repetition of what other noble Lords have said so cogently.

I come to this debate with the experience of having been a divorce lawyer in South Africa—divorce attorney, it was, in those days—where I practised under Roman law, the corpus juris civilis, which is similar to the law in Scotland, respecting that antenuptial agreements are binding, and where many of the provisions of this Bill are incorporated in the divorce law. I also come, sadly, from the experience of having gone through a long, protracted, painful and expensive divorce. I congratulate the noble Baroness, Lady Bottomley, on having been married happily for 50 years.

Legal certainty is of paramount importance. It is absurd that the development of our divorce law has been evolved through judge-made law which bears little resemblance to the original statute. I find it hard to accept that one of the reasons for the Government’s reluctance to take the initiative for a root-and-branch reform of the law is the need to, in their words, maintain flexibility. It is tempting to bear reference to the Brexit divorce, where the uncertainty has been devastating to both businesses and individuals alike.

Let me touch briefly on the issue of costs, which is a major consideration. Many would argue that the only winners in many divorces are lawyers. The removal of legal aid has resulted in many parties being unrepresented and, without clearer guidelines and legal certainty, has added to the trauma of divorce. Making prenuptial agreements binding, as long as both parties have received independent advice, would certainly remove a great deal of the uncertainty as well as reduce legal costs. I agree with my noble friend Lady Deech that there is no evidence that marriage breakdown is encouraged by prenuptial or postnuptial agreements.

I agree also with the noble Baroness, Lady Bottomley, that often insufficient consideration is given to the harmful impact of protracted and acrimonious divorces on the children of divorcees. All too often attempts at mediation fail because of the current legal uncertainty on the division of post-marital assets. The Bill would provide much-needed scope for successful mediation, reducing the need to go to court, and a far fairer outcome. Clearly there is a strong case for divorce reform which makes the law more predictable and paves the way for swifter, clean-break financial settlements. A medium can be achieved for the provision of more certainty and an element of flexibility. It is shameful that London has the reputation as the divorce capital of the world.

I give this Bill, so ably introduced by my noble friend Lady Deech, my wholehearted support. I hope that the Government can, on this occasion, give more backing to these much-needed reforms.