“I have very many concerns about this Bill”
“I have MAJOR concerns about this Bill”
When two such eminent family law QCs as Philip Marshall and James Turner say such things on Twitter about a Bill going through parliament one is bound to sit up and take note. What is this Bill, and what are its provisions that cause such concerns?
The Bill is Baroness Deech’s Divorce (Financial Provision) Bill 2017-19, a private members’ bill that the Baroness introduced in the House of Lords in July last year. The Bill aims “to amend the Matrimonial Causes Act 1973 and make provision in connection with financial settlements following divorce”. In other words, the Baroness seeks to make substantial reforms to the way that the courts deal with financial settlements on divorce.
The Bill has actually been around for some years (I wrote here about an earlier incarnation way back in 2014), which proves that the Baroness is both tenacious and utterly convinced of the merits of her proposed reforms.
Let’s just recap what exactly is being proposed, and why.
The Bill essentially contains three provisions:
Firstly, that pre- or post-nuptial written agreements between the spouses should be treated by the courts as binding, provided that certain conditions are met. Those conditions include the usual things: that the parties had the opportunity to receive legal advice before signing the agreement, that the parties made proper disclosure, and, in the case of a pre-nuptial agreement, that the agreement was made less than twenty-one days before the marriage.
The second provision provides that ‘matrimonial property’ (essentially, all property acquired after the parties were married, save for gifts and inheritances) should be divided equally. The court may depart from equality if it is satisfied that to do so would be fair, having regard to any one of several matters, including the terms of any agreement between the parties relating to the ownership or division of any of the matrimonial property, any ‘destruction, dissipation or alienation’ of matrimonial property by either party, and the needs of any children of the family aged under twenty-one.
The third provision relates to spousal maintenance (despite its section in the draft Bill being headed “Periodical payments and lump sums”). The main point of the provision is that the duration of spousal maintenance orders should be limited to five years (it was three years in the original version of the Bill back in 2014), “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.”
And what of the reasons for these reforms? Well, I think the primary aim of the reforms is to make the law clearer and more certain. We currently have a discretionary system whereby judges are given huge leeway to come up with orders that they believe are appropriate for that particular case. The problem with such a system is that it can be very difficult to know in advance what the likely outcome of a case may be, making it harder for the parties to reach agreement.
But there is something else. Well, a number of things probably, but one in particular that needs mentioning. Another primary aim of the Bill is nothing short of the emancipation of women. OK, that may be a little of an exaggeration, but the Baroness believes that the concept of the ‘meal ticket for life’, whereby a wife can be awarded maintenance potentially for the rest of her life encourages women to be dependent upon their husbands, whereas the modern reality is that most of them are not (of course spousal maintenance orders can be made in favour of husbands too, although the vast majority are made in favour of wives). In the second reading debate back in May she said this:
“Extreme handouts to divorced wives do nothing to help unmarried women and single mothers who are making their own way in the workplace. Women are not all victims, they are autonomous, and sometimes they have to make over property to less well-off husbands on divorce regardless of behaviour. Of course the law is equal, but the attitude of judges is not.”
You can read more about Baroness Deech’s thoughts upon the Bill in this post that I wrote in January last year.
And why do two eminent QCs, and indeed many other family lawyers, have such strong concerns about the Bill? Surely, certainty in the law is a good thing? Well, yes, but the great virtue of our current discretionary system is that judges can tailor settlements to each case, coming up with arrangements that are appropriate and fair. To fetter that discretion is to risk unfairness. The range of possible scenarios that judges have to deal with is limitless, and any restriction upon the options available to the judge is bound to result in some scenarios for which there is no longer an appropriate solution available.
In other words, the current system, contained in the 1973 Act but honed by more than forty years of subsequent case law, is, as a senior judge described, a “delicately calibrated law of financial provision following divorce”, whereas the same judge called the Bill’s proposals “crude and amateurish reform”.
Of course, this is a very generalised summary of what I believe to be the criticisms of the Bill. There is not space here to go into any greater detail, and in any event I wouldn’t want to ‘second-guess’ the thoughts of others with far greater knowledge of the subject than I will ever have.
I think that the real danger here is not that reform is being proposed – I believe most family lawyers believe the time has come to reform the law on financial provision following divorce – but that it is not being properly considered. Instead of a crusade by one determined peer and a few of her followers what is really needed is a full investigation of the law, for example by the Law Commission (which thus far has only partially investigated reform) and a full opportunity for input from the public and the profession via consultation. Only then will we be able to come up with a worthy successor to our present system.
The Bill is scheduled to reach its Committee stage this Friday. You can find the full text of the Bill, and follow its progress, here.