Government considering consultation on divorce finances

Divorce|Family Law|February 10th 2020

House of Lords considers divorce Bill

Consultation on divorce finances: Last Wednesday, the 5th of February, the Divorce, Dissolution and Separation Bill, which aims to introduce a system of no-fault divorce, had its second reading in the House of Lords, where it was introduced.

The debate was quite long, lasting over three hours, and I could not possibly summarise it all in one blog post.

Obviously, there were arguments against the introduction of no-fault divorce at all. The Lord Bishop of Carlisle, for example, felt that it hardly seemed just that someone who wanted to challenge irretrievable breakdown (i.e. the respondent to the divorce) should no longer be able to do so, and expressed concern that the Bill would result in an increased divorce rate.

I have previously set out here the simple arguments that refute these concerns, and I do not intend to repeat them now. Suffice to say that the Bill clearly has overwhelming support, as Lord Keen of Elie, who sponsors the Bill, pointed out, so it must surely be just a matter of time before we finally have a modern no-fault divorce system.

Of course, the debate also considered various amendments to the Bill, in particular when the 20-week ‘period for reflection’ should begin: when the divorce application is issued, or when the respondent acknowledges service of the application. As Lord Keen said, the problem with the latter (and indeed with the period starting from the date of service, rather than the date that the respondent acknowledges service) is that “an unresponsive respondent … might well frustrate the entire process and delay it unconscionably.”

But the ‘amendment’ (if I can call it that) that I want to concentrate upon here is something different.

Reform of financial settlements

Recognising that financial settlements are deemed outside the scope of the Bill, Baroness Burt of Solihull said this:

“If the final decree is awarded before a financial order is made, there must be clear evidence that there will be no meaningful financial prejudice. I do not know how we build this into the Bill, but I think it is exceptionally important, given the tortuous lengths to which some people will go to advantage themselves financially in the divorce settlement.”

And Baroness Meacher said:

“Finally, there is the law surrounding the financial settlement in divorce cases. I understand that the Government are planning a consultation exercise on this issue. Can the Minister tell the House when the consultation will take place, for how long it will proceed and whether it will include consideration of prenups? I know there are reasonable concerns about prenups, but they deserve serious consideration as a means of reducing conflict over money at the time of a divorce. Also, are the Government committed to allowing parliamentary time to implement reform in that area in this Parliament?”

Sadly, Lord Keen did not provide full answers to these points. He did, however, say this:

“Financial settlement was also raised by the noble Baroness, Lady Burt. We are at present considering an appropriate form of consultation on how we might approach any reform of the law with regard to financial settlement, but we have no desire to derail the Bill by trying to draw in a rather more complex area … That will require wide-ranging consideration before we can bring forward any possible legislation. It is not something that we would seek to address in the context of the present Bill.”

I agree that we have waited quite long enough for no-fault divorce, and consideration of reform of finances on divorce is potentially a very complex area, which would certainly cause great delay to the Bill.

However, it is encouraging to see that the Government is, at last, giving serious consideration to the matter, albeit that obviously any reform is still some way away. Hopefully, the scope of the consultation will be comprehensive, so that any reform is not piecemeal.

And what am I looking for in any reform? Well, that could easily fill a whole post, but here are a couple of thoughts.

Perhaps the main thing is greater certainty in outcomes so that parties know at the outset what the court is likely to order, thereby making settlement out of court more likely. This might, for example, be achieved by some simple rules or formulae, although I am under no illusion that any such rules could apply to the full spectrum of cases that come before the courts – we may well have to leave the court with some discretion, to cover situations not envisioned by Parliament.

Binding prenuptial agreements should also be considered, as mentioned by Baroness Meacher. I am not sure that I am in favour of any change in the law in this area, but it may be helpful if it were put on a statutory footing, rather than relying upon decided cases.

Incidentally, if you are wondering why Baroness Deech, who is endeavouring to push through her own Private Members Bill to reform the law on finances on divorce, did not contribute to the debate, it is because she was unable to attend, as she was in the United States.

The committee stage of the Bill, which will include a line by line examination of it, is scheduled for the 3rd of March.

You can read the full second reading debate here, and you can follow the progress of the Bill here.

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John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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Comment(1)

  1. Andrew says:

    “Binding prenuptial agreements should also be considered”. Indeed, and with no get-out clause for the court to consider “fairness”. It’s not difficult: if the parties reached a prenup any order which is more favourable to one party than that prenup is unfair to the other party. Postpone the order if necessary during the minority of children.

    No prenup? Equal division, with the same caveat?

    And then bring back Calderbank to encourage realism and discourage greed and spite.

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