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

Part of the debate – in the House of Lords at 1:53 pm on 11th May 2018.

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Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Shadow Spokesperson (Treasury), Shadow Advocate-General for Scotland 1:53 pm, 11th May 2018

My Lords, I add my welcome to the Bill of the noble Baroness, Lady Deech, which the Opposition are happy to support.

As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, observed, in many areas of legislation there can exist a tension between statutory predictability and judicial discretion—a contest between predictability and flexibility. As the noble Baroness, Lady Deech, observed, for Scotland, Parliament decided in 1985 in favour of prescriptive predictability regarding the division of assets on divorce. This of course did not drive out all judicial discretion in deciding how the split of finances will fall.

In so far as the Bill has drawn inspiration from Scottish experience, I propose identifying a few caveats that Caledonian experience may suggest; I note my thanks to Ruth Innes Advocate, a family law specialist in the Scots Bar. First, however, I commend the Bill, which now includes the five-year period for periodical payments. The Scottish experience suggests that the three-year period is often too short. Furthermore, it is seen to impose a real obstacle to extending the period, even where overall fairness might so dictate. The Bill’s proposal of a five-year period is seen as an improvement on the Scottish experience. The noble and learned Lord, Lord Hope of Craighead, identified this as an area of reform in the Supreme Court cases already referred to—Miller and McFarlane—way back in 2006. Unfortunately, the Scottish Parliament has not yet seen fit to reform the three-year period.

For all the advantages of the predictability in Scots law regarding financial provision, I, with Miss Innes’s assistance, have identified three particular caveats. Where there is a potential competition of jurisdictions for divorce—as between England and Wales, and Scotland—I understand that the economically stronger party is generally advised to raise proceedings in Scotland but the economically weaker party is advised to do so in England and Wales. Thus Scotland is seen to favour the economically stronger party, by way of the 1985 Act. This is partly a result of the three-year period for periodical payments, as well as the practical exclusion of pre-marriage assets from the assets for division.

The second caveat is that the 1985 Act inevitably required a setting-down process, as with all legislation. That produced the other cases that identified and clarified the law, which identified some areas of concern where the law has become somewhat frozen, by reference to these earlier cases shortly after the 1985 Act. These early test cases have tended to discourage later appeals for the usual reasons of cost and risk. The concern is that the freezing of the position may be at the wrong points established by these earlier judicial decisions. To be clear, the concern is for the interests of the economically weaker party.

The third caveat relates to the somewhat rigid definition of “matrimonial property” that has, from time to time, produced outcomes regarded by practitioners in Scotland as unfortunate. For example, in cases of a high-income lifestyle but a low accumulation of assets, the economically weaker party can suffer a dramatic downturn in living standards while the high-earning party can maintain their standard of living. This is seen as an undesirable outcome in situation—a point partly referred to earlier by the right reverend Prelate.

However, none of these caveats should detract from the support given by these Benches to the Bill. My observations point us to where problems may arise and, perhaps more helpfully, where problems may be avoided. The Bill’s principles of equality, clarity and fairness plainly deserve support, which these Benches are happy to provide.