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But such considerations, valid as they are, can also detract from a more demanding duty of this House: that of supporting the primacy of marriage rather than legislating for its dilution, and leading our nation in reasserting positive principles rather than writing provision for failure into a sacred institution created for lifelong blessing and support.
Perhaps the problem with this requested legislation is that, like much current policy and resources, it concentrates on the ending of relationships rather than on supportive foundations for their future. Like the prenuptial agreement, it raises the spectre of relationship disease, with all the consequent emotional and economic costs of family courts, mediation, child support and associated issues, rather than hoping, planning and praying for the emotional health of marriage and offering significant support.
In a society deeply wounded by divorce, the balance of resources should be devoted to relationship education and marriage preparation, and to supportive healthcare for marriage rather than ambulance-chasing after divorce settlements. If more attention was given to this area of our nation's life, we would not have to spend so much time debating what happens when relationships end, and our society would be stronger and more stable as a result.
Baroness Deech: Is the right reverend Prelate aware that in many Catholic countries in Europe, where the divorce rates are much lower than they are in this country, the sort of system that I have recommended prevails? I refer to France, Italy, Spain and so on. They have much lower divorce rates, but they also have the system that I have proposed, which might support rather than diminish the institution.
Baroness Murphy: My Lords, I am no lawyer, and I really do not know much about divorce law, but I have been through a divorce, which has led me to observe what happens in the courts. It was a long time ago, before the case of White v White in 2000, but it led me to think about how the law treats marriages and what we might do about it. I have a great deal of sympathy with the ideas expressed by the noble Baroness, Lady Deech, on how we might move forwards.
That captured for me the exact sense of disorientation, disbelief, anguish and despair that I felt when it happened to me-an infinitely greater loss than bereavement, it seemed to me, since you lose your entire notion of who you have been for 50 years. The rather disdainful approach that I had previously taken in a secure marriage, as I thought it, to people whose marriages had collapsed naturally disappeared very quickly. If I can talk about this subject now with equanimity, it is because it all happened more than 13 years ago and I have had the good fortune to marry again.
I sought out the very best divorce lawyer I could, as did my husband. He was a businessman, and our affairs were very complicated with businesses and
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I realise that many couples will not be able to negotiate in this way. Often one spouse is much stronger than another and sometimes there are few feelings left for the other person. Anger turns to revulsion very quickly. People will behave badly if they can get away with it, and men and women are equally to blame for bad behaviour. Yet I believe that if we had had a skilled mediator in place, we could have solved many of these difficulties from the outset. I particularly liked the introduction in 2003 of the collaborative legal practice arrangements, where people sit down with their lawyers, outside of court, and do it together in a low-key way, still having joint conversations and avoiding the expensive court battles. It seems to me that people ought to go through that first, as a sort of obligatory phase.
Where children are involved, it seems to me that an adversarial court situation is, frankly, bonkers. It is expensive, detrimental to the health of children and leaves scars between the parents that are unlikely ever to heal, meaning that children, in effect, often lose one parent entirely. Frankly, I do not see why legal aid should be available to allow unhappy people to continue mutual squabbling over the possession of their children-and how often have we seen that?
The noble Baroness, Lady Meacher, and I share an office with the noble Baroness, Lady Howarth, who is the chair of CAFCASS. The horrific stories that she tells of the sort of things that children are subjected to in courts while being fought over makes your hair stand on end. As one American lawyer said, the parents declare war and then draft the children. Disputes should be settled out of court through mediation and dispute resolution by non-adversarial professionals. We have an edifice of family courts whose raison d'être we should question. I understand that 95 per cent of divorces in the US are now completed through mediation and/or legal collaboration. Surely, we should aim for that here.
However, what about the very wealthy and the underlying principles? It seems to me that the basic premise of White v White in 2000 is right. The law on the needs basis had not kept up with changes in society. In most cases, the courts were trying to satisfy the needs of both parties with limited resources. The noble and learned Lord, Lord Nicholls of Birkenhead, emphasised that there could no longer be gender discrimination when determining the allocation of ancillary relief. He said,
"If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner or the child-carer".
The House of Lords also recognised that, by being at home and looking after young children, a wife may lose forever the opportunity to acquire and develop her own money-earning qualifications and skills. To a great degree, that is still so. The noble and learned Lord, Lord Nicholls, also said that the judge,
What do we do about foolish men with large fortunes who get hitched to gold-diggers, then find themselves divorced a few years later? My heart does not bleed for them very much; no, men and women will always be fools in love and there is surely scope within the principles of White v White for adjustments to be made. As Simon Cowell-he is the one on the other side when the rest of us are watching "Strictly Come Dancing"-recently said:
I am rather ambivalent. I am very attracted to the right reverend Prelate's view that once you marry someone, you are forming a partnership more than a temporary arrangement. You are making a life and committing yourself to that person. On the other hand, we must recognise that there is a force to be had in saying that in the modern era, having some sort of premarital arrangements or commitment would probably be more sensible. So the answer is for us all to have prenuptial agreements when we embark on the journey, however wealthy or impoverished we start out. Making them legal would at least be a partial step towards the sort of reform that the noble Baroness, Lady Deech, is advocating.
My final point is about the no-fault divorce system. It must be sort of right; we cannot expect the courts to weigh up all the various causes and hurts between individuals. Rather than a no-fault divorce, though, I would like to see the notion that it is everyone's fault-in other words, that the two people have somehow contributed to this failure overall, and that ought to be recognised when people are going before mediation and the collaborative legal system.
Lord Davies of Stamford: My Lords, having heard the lucid and persuasive speech of the noble Baroness, Lady Deech, I wanted to take the opportunity to rise in support of what she said. We all know that the divorce law at present is complete chaos. From time to time, what has appeared to emerge from the jurisprudence as a guiding principle, like the 50:50 rule or the clean-break rule, has for some reason subsequently been set aside at the next judicial decision, so there is simply no clarity. The present system could hardly be better engineered if it were designed to maximise uncertainty and, therefore, legal costs. Some cynics would say that there is a certain category of humanity that would be very attracted to a model of that kind, but far be it from me to make such a comment myself.
The present situation with general divorce law seems to be difficult. The solution must be, as the noble Baroness has suggested, to look for some guiding principle. Perhaps we should look for that guiding principle in the Roman law examples on the Continent. I think I am right in saying that in some Continental jurisdictions, parties have a choice of regime: they can choose communauté de biens, which rather corresponds to what the right reverend Prelate was talking about a moment ago-"Everything I have, I give you"-or séparation de biens. In Scotland, we have an example of a Roman law jurisdiction that has adopted the séparation de biens principle, which is that when you enter into a marriage you keep separate everything that you bring to it, and the only assets or revenues that can subsequently be divided are those that have been accumulated since the marriage. That needs to be looked at; I understand that it is a model that works reasonably well north of the Border. I do not want to decide today what the solution should be, though; I merely urge that it is our responsibility to find one.
With regard to prenuptial agreements, I congratulate the noble Baroness on her brilliant timing: we are expecting a judgment this week from the Supreme Court on this matter. The situation with regard to such agreements is equally confused and equally unacceptable: we have a divorce law that takes one view about prenuptial agreements but which is overridden by the Appeal Court, and then we might have a third view from the Supreme Court. That is not the ideal model of the rule of law that we in this country are committed to. Some years ago in the House of Commons I introduced a Private Member's Bill that would have given legal force to prenuptial agreements, and as a result of today's debate I am inspired to see if I cannot relaunch an initiative of that kind with similarly minded colleagues in this House.
It has been overwhelmingly demonstrated by today's debate that it would be a clear abdication by Parliament not to look at this matter again. After all, we are responsible if a law is chaotic, if the jurisprudence is unclear and if judges find it impossible to give judgments that have any degree of consistency or continuity or that would give the jurisprudence some degree of
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Lord Bach: My Lords, it is not only this House that should be grateful to the noble Baroness, Lady Deech, for raising this subject today, but society in general. This debate is not just interesting, it is significant, because of where it stands in relation to a campaign for reform that now has the push and impetus to make it, in my view, unstoppable. The timing of this debate is crucial in seeing this forward.
I speak with the experience of having been legal aid Minister in the Ministry of Justice until five or six months ago, where obviously this issue, in one particular form, came across my desk many times. I was convinced by the time I left that post that there was need for reform, and considerable reform, of our system of divorce in this country. The latest available figures show that in the United Kingdom, more than 136,000 people were divorced in 2008. That is a declining number in percentage terms, but it always remains an inevitable emotional and financial impact for the individuals and families concerned. Deciding how to divide property and assets and settle the financial arrangements is and always has been one of the big challenges to our system of justice. Few can genuinely say that this system is working and is satisfactory in any real way.
I hope the House will forgive me if I return to the Matrimonial Causes Act 1973, which sets out the principles that the court has to take into account when deciding in each individual case on the division of assets. These include, as many noble Lords will know better than I, whether there is a child; the income, earning capacity, property and other financial resources which each of the parties to the marriage has; financial needs, obligations and responsibilities; the standard of living enjoyed by the family before the breakdown; the age of each party to the marriage and the duration of the marriage; any physical or mental disability; the contribution each party made, including family welfare; the conduct of each party if it is inequitable to disregard it; and the value to each of the parties of any benefit, such as a pension, brought to the marriage which, by reason of dissolution, the party will lose the chance of acquiring.
These principles also help to guide decisions by parties for out-of-court settlements too. However-and it is a big however-the extent to which the principles are useful is affected hugely by the court's overriding discretion under Section 25. Under this section, the court is required to take into account all surrounding circumstances of the case. Therefore, each case is dealt with on an individual basis according to the facts. Some may say that that is great, but the truth is that it leads to such uncertainty that people end up in court when really they should not.
Let us look at examples from overseas. In many comparable countries, the statutory starting point for dividing matrimonial property on divorce is 50:50. In New Zealand, for example, any departure from the 50:50 rule would apply only where there was, interestingly, an enforceable prenuptial agreement, if it was a marriage of very short duration or there were extraordinary circumstances. The New Zealand system recognises that a person may have separate property that is not subject to the sharing formula unless it merges and becomes matrimonial property such as a family home. In the United States, where each state seems to have its own system, there seems to be a general move towards a simple 50:50 split.
Many couples who get divorced in this country are able to agree on financial arrangements and simply apply to the court for a consent order to be granted. For others, financial arrangement decisions on divorce, as we have heard, are long, expensive and painful. This obviously has a damaging effect on family life in the future when there is a need for parties to stay in long-term contact where children are concerned. Children are often caught, as we have heard, in the middle, with a potential impact on their development and relationships with one or both parties. Allowing the court to have a broad discretion recognises that not all disputes are the same. I will quote, not in the original Russian but from a well known translation, the first lines of Anna Karenina:
The current law has led us to a growing feeling that there is just too much uncertainty for parties who are attempting to create financial settlements on divorce. This takes an enormous emotional toll on parties, as well as being extraordinarily and unnecessarily expensive. The longer it stretches on without being settled, the more stressful it can become. The noble Baroness, Lady Murphy, whom I praise for the frankness and honesty of her speech, gave good evidence of this. Of course, it then does more damage for the vital future.
We on these Benches are very interested in the Government's plans for changes in this area of law. Do the Government plan to change the principles that guide the court and the parties in determining whether a financial settlement is fair and reasonable? To what extent would they retain courts' discretion to take into account the individual-but not exceptional-circumstances of parties? How will they calculate a fair formula for maintenance payments where a party is young, with years of future earning potential; or older, following a joint marital decision for one party to forgo their career to care for the children of the relationship instead?
When we were in government we recognised the complexity of financial settlement on divorce. That why we initiated the fundamental review of the family justice system in January this year. We are delighted that the new Government decided to continue with that review and issued their call for evidence in June 2010. I invite the noble Lord, in responding to this debate, to give us what information he can about any preliminary findings from this review. I know it closed only on 30 September but any information that he can give us would be gratefully received.
An amicable divorce is indeed a rare thing. Often there are harsh words, and even deeds, between parties to a divorce, with negative outcomes. That is why the family review looked at the best methods for avoiding confrontational court hearings and encouraging the use of mediation to deliver fairer and less acrimonious settlements that place the needs and interests of children and the parties at the heart of the system.
We are proud of our system here as far as criminal law is concerned. It says that there should be two parties and they should fight it out in court. For criminal law there is a strong argument that that is a better system than systems elsewhere. However, in the sensitive field of family disputes, is it really to be argued that confrontations in court should be the rule, rather than the exception? Is it not much better to look at alternatives to confrontation in court? One of those alternatives is mediation, which has been around for a long time. However, there is-I have heard lawyers say this themselves-a belief that some lawyers in the industry have from time to time merely paid lip service to the option of mediation. In some ways, one cannot blame them because the incentive is to keep the case going. However, if you do that it is unfair to clients and other lawyers, the vast majority of whom make every effort to ensure that cases are not brought to court unnecessarily. I pay tribute to Resolution, a body with 5,500 members comprising solicitors and others committed to using non-adversarial processes with their clients, including mediation and collaborative law, as we have heard.
The question is whether and how we can enhance the use of these processes to improve the family law system. These are very difficult issues. I pay tribute to all those, whether litigators or advocates, who carry out family work. It is a very hard job, which is sometimes difficult and uncomfortable and, on the whole, they do it with enormous skill and probity, and not always for the greatest reward. We on this side of this House think that change must come. I very much hope and believe that the Government are of the same opinion. Our present system is not an option. It is not working satisfactorily for anybody in the system-parties, lawyers, courts or the state. However, change must be thorough, thought out, discussed and, we hope, agreed by consensus.
The Minister of State, Ministry of Justice (Lord McNally): My Lords, I thank the noble Baroness, Lady Deech, for initiating the debate. The fact that she has done so is fully justified by the quality of the contributions. I start at the end, as it were, by responding to the noble Lord, Lord Bach. I am well aware of his work and concern in this area. I do not think that there is any break in the approach as between the two Governments. We shall build on what the noble Lord did under the previous Government. He has already reflected on there being no silver bullets or quick-fix solutions to this matter and said that it has to be thought through, listening carefully to experience and advice on all sides. As he rightly said, we are dealing with extremely complex financial and emotional issues.
As the noble Lord knows, the justice review to which he referred is conducted by an independent panel chaired by David Norgrove. It will publish an
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As the noble Lord, Lord Bach, said, we live in an age when there are many divorces. The timely intervention of the right reverend Prelate the Bishop of Blackburn and the contribution of the noble Baroness, Lady Murphy, were right. In all but a few cases, we enter marriage in the belief that it is for life. When it sometimes does not end up like that, it is very traumatic. I am not sure that we are all like the girls in a Manchester school who, when asked in a recent television survey, said that their ambition in life was to marry a footballer as a way to fame and fortune. The implication was that a marriage in those circumstances would be fairly short. However, the right reverend Prelate's speech resonated for most people in terms of a moral approach to marriage-a determination to try and make it work. The law's job when breakdown occurs is to try and help as much as it can in ensuring a civilised break.
I listened to the noble Baronesses, Lady Deech and Lady Meacher, and I agree that the independence of women has recently increased enormously. However, I am still not sure that the balance in divorce cases is quite as equal as they imply. As the noble Baroness, Lady Murphy, implied, it can often be unequally weighted against the woman in terms of being able to maintain standards or build a career after divorce. As we know too well from some of our crime statistics, far too many women in this country have to manage dysfunctional families long after the male has gone.
Baroness Meacher: My Lords, I am responding to the noble Lord's indication that we were implying somehow that the positions of men and women are equal. My concern-and perhaps that of my noble friend Lady Deech, though I should not speak for her-is simply that things have changed a great deal in the past 40 years, and the law was written at a time when the position of women was very different from what it is today. Situations vary. There are occasions when the woman is the all-powerful and rich earner, and others when it is the man. All situations have to be judged on their merits. I did not want the Minister to take that as a suggestion of equality.
Lord McNally: I fully understand and accept that. Things have changed a great deal in the past 40 years, but a lot of things have stayed the same. We have to take both realities into account. In terms of divorce,
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Mention was made by, among others, the noble Lord, Lord Grantchester, and the noble Baroness, Lady Deech, of prenups. We await with interest Wednesday's ruling of the Supreme Court in Granatino v Radmacher. At present, the courts can take into account prenuptial agreements as part of the balancing exercise that judges must undertake in ancillary relief proceedings under Section 25 of the Matrimonial Causes Act 1973. The judges can still apply discretion-
Lord Davies of Stamford: I am grateful to the noble Lord for giving way. He has read out a list of the various arguments and considerations that the courts, under the Matrimonial Causes Act, can take into account, including-to the extent to which they may wish to do so-the existence of a prenuptial agreement. Would he not agree that the problem is that because there is such a range of criteria, principles and precedents, it is impossible in any one case to give professional advice or predict what the likely outcome, or weighting between those considerations, will be? Would he not agree that a law that is not clear is a bad law?
Lord McNally: Certainly, a law that is not clear is a bad law. That is why we will consider carefully the outcome of the Supreme Court decision, and then the recommendations of the Law Commission, which will look at reforming the law. I hope that we will be able to do that with some urgency.
Another issue raised was that of "the divorce capital of the world". The term has gained traction mainly because of some high-profile cases with large sums involved. However, I noted a comment by Lord Justice Thorpe, who said:
"Too often people in family breakdown situations use court as the first answer when they shouldn't. Often it's dealing with contact with children or intimate personal relationships that really shouldn't be going before the courts".
The Government's view, which is shared by the noble Lord, Lord Bach, is that there is a prospect of putting forward mediation as an alternative to expensive and emotionally charged court proceedings. It is an interesting fact that about 70 per cent of publicly funded cases in which mediation is attempted end up with a successful outcome reached away from the courts, and 60 per cent of publicly funded parties who learn about mediation end up with a successful outcome reached away from the courts. The figures for self-funding parties are similar if not higher. In looking at reform, the Government and many outside experts believe that we should publicise mediation and encourage it to be used much more than it is at the moment.
The contributions from all sides have indicated that our law is in need of examination. That examination is under way: the Supreme Court is considering prenups, while the study group and the Law Commission are also looking at the issue. We hope that, in 2011, those findings and studies will come together, which may be an opportune time to look at a range of reforms to our divorce law, so that it meets real needs and many of the criticisms that have been voiced today.
Again, I thank the noble Baroness, Lady Deech, for raising this issue. I cannot give a snap answer to the question that she has raised in this short debate, but I hope that I have given a sense that we are continuing the initiatives of the previous Administration with a sense of urgency and that we shall look at the matter when the various studies come to fruition.
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