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Lord Hamilton of Dalzell: My Lords, I came to the Bill not liking it in principle, and took particular exception to it in that I felt that it created a gold-diggers' charter. I am extremely grateful to my noble and learned friend for taking me on board and putting me through the mill on this Bill, and for explaining that Schedule 10 of the Bill covered much of the ground by introducing the interests of children and protecting property. It will have the effect that if there is a child of the marriage it will not be in the interests of the child for the squabbling couple to split inherited property or businesses.
One of the interesting points that should be borne in mind is that Ireland very nearly defeated the right to divorce because of the effect it has on property. That is not only the prerogative of large landowners but also ordinary people affected by divorce, and also businesses. One of the challenges was to improve Section 25 of the Matrimonial Causes Act 1973. I have studied it. After a perfectly sensible collection of matters which the courts ought to bear in mind it ends by stating,
Lord Meston: My Lords, I hesitate to interrupt the noble Lord. However, the statutory objective of placing the parties in the position in which they would have been had the marriage not broken down has not been the law since 1984. That has gone.
Lord Hamilton of Dalzell: My Lords, I thank the noble Lord. I am grateful for that. In talking to people who have experienced divorce, the fact that that provision has gone does not seem to be apparent to them.
If one is not to have a gold digger's charter, how on earth does one decide who will get what out of the division after a divorce unless someone is prepared to consider what took place before the divorce?
My noble and learned friend wrote to me saying that in response to the amendment by the noble Lord, Lord Clifford, in Committee, the view of the ancillary relief advisory group--it consists of members of the
I know that the purpose of the Bill is that the courts should not have to look into the causes of marital breakdown. It is a pragmatic Bill which incorporates the existing situation. Does my noble and learned friend consider that the Scottish alternative to Section 25 is a more pragmatic solution to the problem than the present Section 25, if fault is not to be involved?
The issue relates to pensions. I thank the noble and learned Lord the Lord Chancellor who has avowed to give much more attention to this part of the Bill despite what happened in Committee. It may be wise to listen to the advice that I have been given on certain matters relating to occupational pensions. My advisers tell me--I think that noble Lords will be interested to know it if they do not already know--that we should be concerned that the domestic law measure in 1981, the Transfer of Undertakings (Protection of Employment) Regulations, is, sadly, being undermined. It appears that future occupational pension rights are not protected by those regulations. I am grateful to the noble and learned Lord for saying that he will consider that point.
As we have heard, and as we were well aware, approximately 71 per cent. of couples today both have jobs. Should that be the case, it makes it that much fairer that each party contributes to a pension scheme, and that there should be a fairer share on a divorce.
I agree 100 per cent. with what the noble Baroness said. As I am sure noble Lords are aware, the Scottish law holds that whatever asset is brought into a marriage, it is retained by the party who brought it in. Any of the assets which are brought in after the marriage are shared by both parties. It is only fair to consider the mother in a marriage who has nurtured, cared for and looked after the social education of her children, that her contribution should be considered as equivalent to the premium paid to a pension and that that should therefore guarantee to her a due share. Apart from that, I agree with what the noble Baroness said. We must consider very seriously the ideas which have been practised in Scottish law.
The Lord Chancellor: My Lords, I am very grateful to my noble friend Lady Young and the noble Lord, Lord Stoddart of Swindon, for tabling Amendment No. 58, which seeks to replace Section 25 of the Matrimonial Causes Act 1973 with Sections 9, 10 and 11 of the Family Law (Scotland) Act 1985 with some modifications, one of which is quite major.
Section 25 is the provision of the 1973 Act which lists the factors which the court is to take into account when it is considering financial provisions on divorce, first consideration being given to the children of the family who are under 18.
The wide discretion which the 1973 Act gives to the court when it is considering financial provision on divorce would be restricted by this amendment. The court would instead be required to consider the five principles set out in subsection (1) of the amendment; for example, the principle that the net value of the matrimonial property should be shared fairly between the parties.
The ambit of matrimonial property would be more limited under the proposed amendment than at present. Gifts and inheritance are excluded and also pre-marriage property unless acquired for use as a family home or its furniture. In contrast, the 1973 Act permits the court to consider all the spouses' property.
Your Lordships will not be tremendously surprised to know that I am somewhat attracted to the Scottish system, although it came into force after I ceased to practise in that distinguished jurisdiction. It may well be that the application of the principles would form an effective starting point for negotiations. Parties would know better where they stood and perhaps there would be less acrimony than under a more discretionary system such as the current system here. On this aspect I attach a great deal of importance, as does my noble friend Lady Young, to reducing as far as possible acrimony at this stage of the matter where questions arise about distribution of property and the like.
However, the substitution of the amendment for the existing law in England and Wales would represent a major change in the law relating to financial provisions on divorce. I have taken the preliminary advice of the Ancillary Relief Advisory Group. It agrees that this is a complex area, the reform of which would require detailed consideration. The loss of a wealth of expertise and jurisprudence on Section 25 of the 1973 Act could only be contemplated after detailed review because it is in the light of the jurisprudence that exists on Section 25 that cheap and cheerful advice is available on the law of England, as the noble Lord, Lord Meston, said earlier. It is not just the statute, it is the jurisprudence that has followed from the statute which enables that to happen.
I do not for a moment accept that this Bill, as it bears on divorce, will enhance the prospects of a gold-digger. The courts are astute in taking account of conduct where it is inequitable not to do so in such a situation. The wide discretion which the courts have under Section 25 is an important factor. If one considers law across the world, opportunities for gold-digging are more apt to arise in jurisdictions where there is a set scheme than in cases where there is discretion. However, that is a subsidiary matter. A degree of precision in the prescription of the rules can help in negotiations and also in the forecasting of court decisions.
My noble friend's amendment contains a major difference between the amendment and Section 11 of the Family Law (Scotland) Act 1985. It is the reference in Clause 25A(6) to the conduct of the parties, both
The purpose of the amendment is to draw attention to the important advantage that there might be in having a more prescriptive system than is set out in Clause 25. On the other hand, it is clear that that would be a major move from the present law, not to be contemplated without extensive consultation and consideration. I would wish to take it forward, but it is out of the question to do so within the timetable of the Bill. Therefore I confirm to my noble friend and the noble Lord, Lord Stoddart, that I wish the matter to be further considered and due consultation to take place upon it. However, I do not believe that we could properly deal with the problems in the course of this Bill.
I wish to make one other point. My noble and learned friend Lord Simon of Glaisdale mentioned that the Bill deals with divorce. But it also deals in an important way with the support services for marriage, as a result of the amendments which your Lordships have passed. I regard that as an extremely important part of the Bill and am glad to have been able to move the amendments to it. They show a way forward to concentrate on trying to prevent marital breakdown before any question of divorce arises. To concentrate on it only in relation to the divorce process is too close to pathology, whereas preventive medicine is a much better approach. I believe that the Bill encourages it. I hope that your Lordships will not lose sight of that aspect. The Bill gives a good opportunity to put the strength of the nation behind the institution of marriage in a way that has not been possible for some time.
In the light of what I have said about the amendment and what I feel as to how it should be taken forward, I hope that my noble friend will be able to withdraw it. It has served the purpose for which she put it down, as a result of our consultation.
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