I think we can all agree that our nearly 50 year-old divorce laws need updating, even if we can’t agree exactly how to do so. Unfortunately, since the debacle that was the Family Law Act 1996, an ill-fated and ultimately aborted attempt to introduce no-fault divorce, the Government has consistently shied away from the effort of reform.
And so we are in the unsatisfactory position of relying upon private members’ bills to do the job, or at least to attempt to. Such bills, of course, suffer from at least two disadvantages when compared to Government bills, no matter how meritorious their content. Firstly, they are not given the resources of a Government bill so that the issues they raise can be properly scrutinised, such as a Law Commission report beforehand. And secondly, they have very little chance of being passed. Still, at least they can put the subject ‘back on the agenda’, even if only briefly.
As was reported here last week, Baroness Deech’s Divorce (Financial Provision) Bill received its second reading in the House of Lords on Friday. It aims to amend the law relating to financial settlements following divorce. I don’t propose to go through the contents of the Bill as I have already done that here, way back in 2014. Instead, I want to look at what Baroness Deech had to say in the second reading debate.
One of the first things that Baroness Deech did was to take a side-swipe at the supporters of no-fault divorce, which include myself. She said:
“There has been much publicity recently about the alleged advantages of so-called no-fault divorce, but bitterness and mud-slinging cannot be eradicated from divorce.”
Well, maybe so, but I think the advantages of no-fault divorce are rather more real than merely ‘alleged’. They include reducing animosity and thereby increasing the chance of couples resolving issues between themselves by agreement. Anyway, the Baroness’s real point was a good one -that bad law on financial settlements can be just as inflammatory as bad law on divorce itself. Accordingly, her Bill sets out to remedy that situation, primarily by making it clearer what the outcome of any case should be. As she rightly says, such clarification is even more important today, with so many litigants having to represent themselves.
She then gives other reasons for the reform, such as judges putting forward various principles to interpret the current law, with the result that even lawyers find it difficult to predict outcomes; and judges taking different approaches in different parts of the country. I particularly like her point that:
“The law that seeps through to the public and into the textbooks inevitably arises from big-money cases that go to the highest courts. These pontifications are not necessarily helpful to low-income families.”
As someone whose clients were almost exclusively of modest or low incomes, I have long thought this way. The Baroness is crushing in her criticism of the discussion of what she calls ‘alleged needs’ in these big-money cases, such as “£39,000 per annum on watches, which is equivalent to funding a month’s food for 1,695 malnourished children”. Meanwhile, she says, “the ex-wives of low-income husbands have to struggle along as best they can”. Quite.
Moving on, the Baroness comes to the central point of her Bill:
“At the crux of the issue is the value of judicial discretion in every case versus plain rules, as contained in the Bill. Our divorce judges are doing their best with care, generosity and sensitivity, but the result is uncertainty, expense and unpredictability. The rule of law demands that the law be predictable and certain”
She proposes to remove, or reduce, judicial discretion whereby the judge can tailor a solution to each case, and replace it with fixed rules that apply in all, or most, cases (see my earlier post for the details). She admits that her ideas have not met with approval in all quarters, pointing out that an unnamed senior judge recently warned of:
“…the crude and amateurish reform of the delicately calibrated law of financial provision following divorce, which is currently attracting some support in the House of Lords”
This she says, “is a very narcissistic comment”, which ignores the fact that it is Parliament’s job to make law, and it is the judges’ job to apply it, not to determine the legislation. She also has a swipe at “a few solicitors with a vested interest in no reform because their task of leading couples through the maze of the existing law is very well paid”, although she names no names. In fact, I think that most lawyers are weary of the present system, and would be only too happy if they could advise their clients with greater clarity and confidence.
The Baroness then went through the main provisions of the Bill, i.e. to make prenuptial agreements binding, and equal division of ‘post-marital assets’ (i.e. those assets acquired after the marriage, save for inheritances and gifts). As to the latter, she pointed out that a similar system has been operating successfully in Scotland for the last thirty years.
She then moved on to her closing remarks, including the somewhat uninspiring one that: “Most people prefer the certainty of misery to the misery of uncertainty”! Well, that’s one way of putting it, I suppose.
The Bill, she says:
“..combines autonomy with fairness. It will give divorcing wives entitlement and end the practice of treating them as supplicants for a discretionary allocation. It will protect the family business and the working wife. It has the potential to save millions in litigation costs. It will provide a good starting point for mediation and negotiation. It will restore some dignity, clarity and reasonableness to family law.”
Some pretty impressive achievements for a seven-section Bill to live up to. Echoing a certain “Brexit means Brexit” comment made by our Great Leader, the Baroness concludes:
“Divorce means divorce. The Bill will provide couples with a White Paper for a fair deal and a smooth transition to a single life. No more negotiations without a plan; no more hard exits.”
You can read the full second reading debate on the Bill here.