Examination of witnesses (Questions 130 - 132)
WEDNESDAY 1 JULY 1998
RT HON
LORD JUSTICE
THORPE
130. Following that, some might see it as
a curiosity really that Parliament has new laws for divorce under
the Family Law Act and is now concerned rightly with pension splitting
on divorce but at a time demographically when more people are
cohabiting, some as an alternative to a first marriage and certainly
following one divorce more people seem to be cohabiting rather
than remarrying. Do you have a comment on that?
(Lord Justice Thorpe) I am in complete agreement.
When we are asked to report our view on the reform of section
25 of the code for the married some of us have the view: should
this not be taken in conjunction with the difficult issue of whether
a code should be provided for the unmarried and how should the
two codes interrelate? Should we be expressing views about a code
for the married when we do not know what the Law Commission is
going to propose for the unmarried? There are obvious difficulties
facing legislators. On the one hand it seems desirable from any
commonsense standpoint that a code should be put in place for
the unmarried but against that there is always the argument that
that is only further weakening the institution of marriage and
encouraging the exodus.
131. Yes. Can I ask you to speculate. People
obviously decide to get remarried or not for all sorts of reasons,
some well outside the area of rational legal considerations, but
from your experience in court do you think that a new law concerning
pension splitting on divorce might have an impact on people's
decisions regarding whether to enter a second marriage as opposed
to cohabitation?
(Lord Justice Thorpe) My own view would be that
it would be very unlikely to have such an effect, partly because
I suspect that a very, very small section of humankind sits down
and analyses rationally the pros and the cons and also because
I do not regard this as being that fundamental an advance. It
is an important advance, it strengthens an existing range of powers
but it is not so fundamental as was, say, the introduction of
the power to order transfer or settlement of property in 1970.
I simply cannot think that it would be taken into account as a
major or serious consideration by a mature couple who were choosing
between cohabitation and marriage.
Mr Wicks: Thank you.
Chairman
132. You earlier said that you broadly were
in agreement with the terms of the draft statute that we are looking
at and maybe that is the answer to the question. Do you think
there is anything special that we as a Committee in this position
at the moment should be looking at in particular?
(Lord Justice Thorpe) I have not looked at this
precisely but I would just have this thought: whenever Parliament
has introduced a new power or what might be called a new remedy
there have been problems over the transitional period. I think
it is very important that the statute should be absolutely plain
that it is not intended to have any retrospective effect. For
instance, when lump sums came in or when property adjustment came
in there were inevitably ingenious arguments saying "well,
this is not retrospective but on the other hand no such power
was there when my orders were made and I must be entitled to apply".
The clarification is relatively swiftly and can easily achieved
by precedent decisions. But it would be nice if this statute could
eliminate the possibility of somebody, say, who had a clean break
order in 1995 coming to the court and saying "Despite the
fact that I had a clean break order in 1995 that dismissed all
my claims, now I want to apply for a pension share. I must be
entitled to do so because the rights that were the subject of
dismissal did not include the right to apply for pension share
because it did not exist", that sort of thing. I would hope
that as far as possible the statute itself would eliminate that
sort of ingenuity.
Chairman: Thank you
for that idea. If there are no other questions from colleagues
it only remains for me to thank you very much indeed for what
has been a very valuable and thought provoking session. Your evidence
is a model of conciseness, as Edward has said, and it has also
been very stimulating and I am sure it will assist the Committee
in its work on this important report which is such a technically
complicated matter. You seem to have made it all so clear this
morning. I am sure that is a model that we will all look to try
and replicate in the future. Thank you very much for your time.
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