Divorce (Financial Provision) Bill: Bishop of Chester highlights need to clarify divorce law

ChesterOn the 11th May 2018 the Bishop of Chester spoke during the second reading of Baroness Deech’s Divorce (Financial Provision) Bill.  The Bishop spoke about the developments in the approach taken by the Church of England to divorce and supported the outline of the Bill. Bishop Peter highlighted concerns regarding areas of the Bill relating to children, premarital assets and the need for a more adequate safety net.  Baroness Vere of Norbiton responded to the debate for the Government and her comments can be found below. The Bill was read a second time and has moved to Committee Stage.

The Lord Bishop of Chester: My Lords, I join others in congratulating the noble Baroness, Lady Deech, for her persistence and perseverance in bringing this Bill forward and for her very elegant opening speech.

I have not spoken on divorce in the House before, but on a number of occasions I have spoken about marriage and its place in society, including in a balloted debate just a few years ago. So many of our social problems are exacerbated by the modern frequency of divorce and the break-up of relationships outside formal marriage—key drivers behind poverty, child poverty, homelessness and housing shortages as well as loneliness and all the social and psychological problems that can follow from that. The impacts on children can be variable and are disputed, but nevertheless they are surely real.

Yet we have to be realistic: divorce happens and, indeed, can be the right way forward; perhaps it often is. There are few things worse than being trapped in an unhappy marriage, although I sometimes wish that people started out with a more realistic sense of the inevitable ups and downs, tensions and demands of marriage. A president of the Mothers’ Union was once asked whether she had ever thought of divorcing her husband. “Divorce? Absolutely never”, she said—“But murder? Really quite frequently over the years”.

The Christian church has found divorce a difficult subject. The view developed in the main western branch of Christianity represented by the Roman Catholic Church and those protestant churches that emerged from it, including the Church of England, was that a marriage, once solemnised, was indissoluble. Divorce or annulment were virtually unthinkable, other than in the most exceptional circumstances—as, indeed, Henry VIII was to discover. To this day, the official teaching of the Roman Catholic Church maintains that, unless a formal ecclesiastical annulment is granted, those who are divorced and remarried should not be readmitted to receive holy communion. I am pleased that Pope Francis is pushing back against this, amid a vigorous debate in the worldwide Catholic Church.

Through a rather tortuous process, the Church of England has arrived at an acceptance of divorce, to the point where those who are divorced are usually able to remarry in church, subject to certain pastoral conditions. I warmly welcome that. Indeed, in nearly 40 years of ministry, I have always been willing to avail myself of the provision in the statute law which permitted me to remarry divorced people in church. I recall 30 years ago being severely admonished by the then Archbishop of York for doing so. The secret of success in the church is sufficient insubordination.

Interestingly, the eastern Orthodox churches have always permitted the possibility of remarriage after divorce, because they have always taken a rather different view of the status of vows. In many ways, the western churches have been catching up with the long-established practices of the eastern churches.

I say all this as background to the Bill of the noble Baroness, Lady Deech, which I warmly welcome. I value the flexibility that our common law traditions give, but there must come a point, as others have said, when Parliament provides a clear legal framework when a great deal of case law has built up over a period of considerable social change. The general withdrawal of legal aid is an important factor here. Couples should be able to seek clearly in law the principles upon which their practical separation and divorce will proceed. We may regret that more people represent themselves to save on legal costs, but it is a reality that is unlikely to change.

I hope that the Bill reaches Committee, and I mention one or two issues that I suggest may need some further examination. I do not think that I have ever said before in your Lordships’ House, “I am not a lawyer, but”, although I have heard that introduction to quite a few speeches in the past. However, I have benefited from comments from some leading lawyers who work in family law—my daughter is a senior lawyer in the City and I was able to glean some advice from her. So if I speak as a fool, as St Paul once put it, I at least try to be an educated fool in what I am about to say.

For my part, I think that prenuptial agreements, if entered into freely and after legal advice, should be recognised as legal agreements, and that has been the direction of travel, as we have noted, although I wonder whether they might be subject to an overall test of reasonableness in the Bill. The noble Baroness, Lady Shackleton, said “fairness”, and I wonder whether some overall test of reasonableness or fairness is required.

There is a sense of course in which prenuptial agreements are in tension with the traditional commitments entered at marriage—for better, for worse and so forth. I certainly do not want to encourage moving to an unduly contractual view of marriage. All is fair in love and war, it is said, and war is not governed by a contract with break clauses. Imagine Britain in 1939 sending a message to Berlin: “We are declaring war, but we would like to see how it is going at Christmas”. There is a certain dynamic in some human activities where you just have to go for it without, as it were, trying to predict everything in advance. Yet the reality is that people today often marry later or with children from previous marriages, and I can see a place for prenuptial agreements in providing a better basis for a new marriage. I would regret if they became too much the norm for all marriages—though I fear that may well be the direction of travel—because there needs to be a certain sense and element of open-ended commitment and, yes, a leap of faith, in our understanding of marriage.

I also accept the general wisdom of seeking to help the people concerned in a divorce to make as clean a break as possible. The Church has moved in this direction in the—fortunately comparatively rare—circumstances of priests divorcing. When this happened in the past, it generally used to be the case that the priest was male and the spouse a female, who had often devoted herself to supporting her husband’s vocation and their family. Divorce in these circumstances was very difficult indeed. Typically, there were few assets to distribute and a diocese would house what one often called “the deserted wife” for life and would provide some maintenance. Nowadays, we seek to facilitate a clean break and provide funds for retraining, if needed, and time-limited help with mortgage payments, where necessary.

I have some hesitations over the details in Clause 5. Why is the age of a dependent child limited to 16? Children these days are often dependent on their parents for much longer than that—I speak from my own experience. Again, five years seems a tight time limit for many folk who need significantly longer to retrain and get established in a career. I would prefer seven or perhaps even 10 years, notwithstanding the possibility of a court granting periodical support for a period of longer than five years.

However, my greatest concerns are about Clause 4. The potential danger with ring-fencing premarital property is with a marriage where most of the assets were generated pre-marriage, and the marriage was perhaps a comparatively long one, perhaps with one party, usually the wife, looking after children and not developing a career. Perhaps the husband had been very busy, which was in practice what needed to happen. Perhaps the income during the marriage had been fully spent on the children’s education. There could be very little matrimonial property to divide in those circumstances, yet one party has substantial premarital ring-fenced assets and the other has given half a lifetime to the marriage but does not have any entitlement to those assets.

The Bill as drafted does not seem to have an adequate safety net—the flexibility to which the noble Baroness, Lady Falkner, referred in her remarks—either for the other spouse or for children. Again, it is limited here to children aged 21. Children in education often go on well beyond 21, so it seems too low an age limit.

These are merely the thoughts of a jobbing Bishop who has been happily married for 40 years—and who, by pure coincidence, will return to Scotland in a year or two.

 

Baroness Vere of Norbiton (Con): My Lords, I congratulate the noble Baroness, Lady Deech, on securing the Second Reading of her Bill. Indeed, I thank her for all the work she has done, and no doubt will continue to do, in this vital area. Although currently much maligned, it is a strength of your Lordships’ House that noble Lords such as the noble Baroness, Lady Deech, with a passion for and deep understanding of an issue, can work tirelessly with Governments of all persuasions to encourage reform. It has been my pleasure to listen to your Lordships today. I thank all noble Lords for the insight they have brought to the debate. I will encourage my colleagues in the MoJ to study them carefully.

The resolution of financial matters is one of the many challenges of divorce or civil partnership dissolution. Although there are differences of opinion within your Lordships’ House and beyond, it seems that there is an agreed and twofold objective: that the process should be as supportive and clear as possible, and that the outcome for both parties and any children involved should be fair.

From the debate it is very clear that there is consensus among your Lordships that reform of the law governing divorce finances is overdue, but it is also the case that consensus on the type of reform is not universal. The President of the Family Division, Sir James Munby, who, as the noble Baroness, Lady Deech, noted, favours reform, also recently observed that,

“views on what form such reform should take are sharply divided”.

It seems that this divide comes from the differences of opinion about how we should balance the law. We can all agree that the current legal framework gives the court wide-ranging flexibility in making financial orders and that judges skilfully exercise that flexibility and discretion every day. For those who see the virtue of the existing law, that flexibility allows for fairness. For those who see a problem with the law as it is, that same flexibility makes for uncertainty. For example, the noble and learned Baroness, Lady Hale, the President of the Supreme Court, has suggested that, sometimes, open-ended periodic payments are the only way to,

“give each party an equal start on the road to independent living”.

It is clear to me that the breadth of views, including from those at the very top of the legal profession, warrants careful consideration by the Government.

Rebalancing a law such as this—if we are satisfied that it needs rebalancing—cannot be an easy undertaking. The law—one law—must allow the court to deal equitably with the widest range of cases, from shorter marriages of young people, both with successful careers and great prospects, to longer marriages of older people where it was jointly decided that one of them should give up a career to build a home and raise children. Here I must note that, although there might be a perception that the law is out of step with how men and women live their lives today, the law is gender-neutral. Equality of spouses is in statute, so how does it get put into practice? One might conclude—indeed, some have alluded to this—that it is not the law that needs to change but the attitudes of some of those who apply it.

It is clear that the law must retain a measure of flexibility. The question before your Lordships’ House is how much flexibility is needed to allow the court to make orders that are fair to both parties in a very wide range of cases and circumstances. This must be balanced with the need to provide greater certainty about financial outcomes to inform and manage the expectations of the separating couple. The Government want to encourage couples to agree financial arrangements themselves where it is appropriate and safe for them to do so.

In 2014, the Law Commission noted criticism that the law on financial needs was not always consistently applied, but it concluded that the law on this did not need statutory reform. Instead, it recommended that the Family Justice Council prepare guidance on the meaning of “financial means”. The Government listened and took action. With government funding, the Family Justice Council produced detailed guidance for the judiciary and legal practitioners. The noble Baroness, Lady Deech, commented on the guidance’s complexity, but it is for those with the skills and experience to deal with complexity, not for the divorcing couple. It was only relatively recently that this work was completed—indeed, within the last few years. It is only right that we give it time to bed in. If, in due course, it is decided that it is not fulfilling its purpose, perhaps it will need to be reviewed.

There is good guidance for the divorcing couple—a topic mentioned by the noble Baroness, Lady Falkner. The Government produced an excellent guide for divorcing couples to help them agree their finances. The guide, Sorting Out Your Finances When You Get Divorced, is accessibly written, is just 50-odd pages long, is well presented and has been available since September 2015. It explains the options available and how the court makes decisions, so that divorcing couples can have a realistic perspective on their separate financial futures.

Baroness Shackleton of Belgravia: I need to repeat the difficulties presented by that document when the judges applying it do not agree. When you are advising somebody and want somebody to mediate an agreement, or when you are faced with a client who comes into your office and says, “What should I settle at?”—it does not matter if you are dealing with a pro bono person or somebody who can afford many times most people’s annual income—if the adviser cannot predict the outcome because judges apply the same rules differently, we are in big trouble and a settlement cannot be agreed. Therefore, there is a delay; therefore, there is uncertainty; therefore, people get upset and, therefore, children become involved or get disaffected. Most people can deal with things when they know what it is; they cannot deal with uncertainty and delay. The cost of finding out the solution from the document that has been produced is not working.

Baroness Vere of Norbiton: I thank the noble Baroness for her insights on that. To a certain extent, the Government agree. It is why we have been working with the Family Justice Council and are continuing to look at this area. We want to make sure that everything is in alignment. Everything has eventually to be in alignment, whether that be the decisions of the judges or the expectations of those going in front of them and seeking a fair divorce.

Returning to the guide, I wish I had seen it when I went through my—thankfully—only moderately costly divorce. Reaching a financial agreement is very stressful, as I think all divorcing couples can attest. The further away from judges that agreements between the individuals can be reached, the better it is.

I return to flexibility and certainty, as mentioned by the noble and learned Lord, Lord Brown, my noble friend Lady Bottomley and the noble Lord, Lord St John of Bletso. In any reform of the law to balance flexibility and certainty, the Government need to be sure that a proposal would achieve what it sets out to do and would not cause unintended difficulties. Given the complexity involved in disentangling the finances of a shared life and the impact of any changes at a personal level, the Government are keen to see a solid evidence base for reform. We are very open to reviewing any and all evidence from the noble Baroness, Lady Deech, or any noble Lords. Put simply, we all want to get this right.

I acknowledge that noble Lords have pointed to the model of Scots law. I am grateful to the noble and learned Lord, Lord Davidson of Glen Clova, for his comments on its operation and some of its consequences. The noble Baroness, Lady Deech, has drawn attention to research by Professor Jane Mair and others on how the Family Law (Scotland) Act 1985 has worked in practice. A proposal to amend English law in line with Scots law may well appear attractive. I am conscious, however, that there are dissenting voices among the judiciary, family law practitioners and beyond—and, perhaps as significantly, in another place. If the Government conclude that the law in England and Wales needs reform, whether of the duration of periodical payments or of the matters that a court must consider, we must take account of the provisions as a whole and the effects of any changes.

The so-called “big money” divorces mentioned by many noble Lords make for eye-catching tabloid headlines, and I appreciate that several of your Lordships think that awards have been overgenerous. One might also conclude that because such cases come to our country and to the English courts demonstrates perhaps our laws in this jurisdiction are fair, and that the impartiality of our judiciary is highly regarded. But such cases are small in number and a world away from the circumstances faced by the vast majority of divorcing couples.

The question for government is where any reforms would leave more typical cases, perhaps those involving people of an age at which it would be difficult to return to their former career, be that a man or a woman. Couples who have no intention of divorcing make decisions in the expectation of a long-term partnership. These decisions then have serious repercussions on one or more of the parties when, against their initial expectations, their marriage breaks down. With all this in mind, I now turn briefly to the detail of the Bill.

Clause 2 defines matrimonial property—in broad terms, this is property acquired during the marriage but not, for example, from an inheritance—and seeks to exclude property acquired before the marriage from consideration as an asset when financial orders are made. The Government’s concern remains that this could cause hardship if someone’s financial needs could be met only if assets that the other spouse had acquired before the marriage were included.

Clause 3 seeks to make nuptial agreements enforceable on condition of certain safeguards. The Government are considering a similar recommendation, made by the Law Commission, which has additional safeguards. I note the comments of the right reverend Prelate the Bishop of Chester, suggesting a test of reasonableness or fairness when making an agreement, and the need for independent advice, noted by the noble Lord, Lord St John of Bletso. We are considering introducing nuptial agreements and we will make our position known on this recommendation in due course. If the Government decide to go ahead, we will of course give consideration to the guidance needed for couples, as mentioned by the noble Baroness, Lady Falkner.

Clause 4 sets out a presumptive 50:50 split of property. People do not, of course, always leave a marriage equally. One partner often has better employment prospects. One partner is often expected to shoulder most of the caring responsibilities. The existing law allows for redistribution of assets to make up for this. The Government remain concerned that changing the law in the way proposed could have an adverse effect on the financially weaker party and their transition to full financial independence.

Clause 5 seeks, in part, to limit the duration of periodical payments to five years,

“unless the court is satisfied that there is no other means of making provision for a party to the marriage and that that party would otherwise be likely to suffer serious financial hardship as a result”.

I appreciate that periodical payments often draw headlines, being called “a meal-ticket for life” in divorce cases that involve the more affluent. However, it is worth noting that most people do not, in fact, apply for periodical payments when they divorce. It is important that one type of divorce should not cloud the debate around what happens to those of more limited financial means. We have, it is important to say, common ground in wanting to support people to move to financial independence. The Government are not persuaded, for the time being, that the existing law does not support this objective. However, as I said previously, we are happy to review any evidence that comes to light.

On Clause 6, the Government continue to believe that the existing provision on taking a party’s conduct into account remains adequate.

I have outlined the Government’s reservations about the Bill, but I want to focus on where we agree. While the Government’s position on the accessibility of the law and the clarity that it offers divorcing couples may differ from the position of the noble Baroness, Lady Deech, we all want the law to support couples and encourage a fair outcome. I am conscious, too, that other individuals and groups have also shown an interest in divorce finances, and the Government will wish to take a range of views, and solid evidence, into consideration if we conclude that reform is necessary. My honourable friend Dr Phillip Lee recently said in another place that he is hopeful that the Government can work across the House and beyond as we continue efforts to improve the family justice system. This remains true. It would not be helpful to approach consideration of reform in any partisan way.

I am aware that I have spoken at length and may not have covered as many points as I would have liked, but I really wanted to set out the Government’s position. If I am able to add more colour, I will write to all noble Lords who have spoken today. I acknowledge the mood on all sides of this House and the strength of support for the Bill. I assure your Lordships that the Government will reflect on all that has been said today.

 

Baroness Deech: My Lords, as you would expect from this House, a wealth of wisdom and experience has been shown. Some of the prime movers in some of the most important cases of recent years are right here and have spoken in support of the Bill. There has been support from right around the House, including from the Bishops’ Bench—what more does one need?

Before I address the government response, the main worries expressed by those who have spoken were about prenups. The Law Commission looked into this very thoroughly. There is actually a draft Bill appended to the most recent Law Commission report on this. If one is looking for consensus, one could pick up that Bill, already drafted, and run with it. I think it has a little too much uncertainty in it but there is no lack of consensus on the need to have prenups and the fact that they will not do any harm.

The other note of contention—not so much about discretion and statute, because we have that in every area of the law—was about the weaker partner. This brings me to something that I can only touch on lightly, which is how we see women today. In most other countries where they have a system like the one I have put forward, women actually feel less discrimination and have better childcare and more equal pay. There is a close relationship with the insistent message from some lawyers and judges—and, regrettably, some younger academics who are reinventing the wheel—that women are victims and women are suffering.

We changed the divorce law to “irretrievable breakdown” in 1969 and the message should have gone out to women then that, “You cannot expect to stay married because if your partner wants out he will go and there is nothing to stop him”. It is a bit late now to say, “If you are a housewife and you have given up your career to look after your children, a man will have to keep you”. He may not have any money. He may remarry to someone who is equally deserving. In our society now the Government say that women should take half of all positions on boards, should form half of the judiciary and should be in the Supreme Court—women should be running the world. I agree with that but you cannot at the same time say, “It’s all right. You will be kept. You don’t have to pursue a career. You are a victim”. We have to get away from this victim mentality and see women as equals.

To the Government I say: lack of consensus has never stopped the Government pursuing a reform if that is what they want to do. We can all cite many examples of that. I put forward a suggestion this year that we should have a Select Committee on family law, which would have brought the attention of the House to bear on these matters and maybe produced a consensus, but I am sorry to say that that notion was turned down in favour of what I have previously described as some motherhood and apple pie Select Committees in this Session.

The guidance that the Minister referred to has never been cited in a case—it has not achieved any sort of consensus, as the noble Baroness, Lady Shackleton, pointed out—nor has the guidance which is put forward for litigants, or they would not be weeping in court, as I have seen them do, and spending so much money. It has not worked. The Government are missing the point if they think that that guidance is going to help. Anyway, what sort of condition is the law in when you have to set it to one side and turn instead to guidance put together by the Family Justice Council? It is not binding and it has not helped.

The Minister said we need evidence. We have a wealth of evidence from the whole of the western world: Europe, America, Canada and, most notably, Scotland. It has worked there since 1985. The evidence in the report Built to Last shows that no more women are going on social security than before. The evidence is there. England is an outlier. This is not a situation to be proud of. Why not get on with it? The more years that go by, the worse it will be. The money that is wasted on legal costs would rescue many middle and lower-income couples from the penury that they might otherwise face on divorce. So I am not satisfied with the government response. I think they will find that the public are not satisfied with their response. When this is covered in the media, they will find that the weight of opinion is against the “make do and mend” attitude that we have just heard.

On that note of severe dissatisfaction, I ask the House to give the Bill a Second Reading

Bill read a second time and committed to a Committee of the Whole House.

(Via Parliament.UK)