Asked by
To ask Her Majesty’s Government, further to the letter from
to on 16 March 2020, what
progress they have made on reforming the law governing financial
provision on divorce to align with the introduction of no fault
divorce.
The Parliamentary Under-Secretary of State, Ministry of Justice
( of Tredegar) (Con)
My Lords, the letter from my noble and learned friend Lord Keen
was sent at the conclusion of the parliamentary process for the
divorce Act. In the intervening two years, we have prioritised
the implementation of the fundamental reforms of that Act, which
will commence on 6 April. Following that commencement, we will
consider how best to proceed with the commitment in that letter,
and we will announce our intentions in due course.
(CB)
My Lords, the new no-fault divorce law is coming into force in
three weeks’ time, but the most miserable and litigious part of
it will remain: the law about splitting assets and paying
maintenance. That law is so bad that the ministry is paying
couples £500 each to mediate and avoid it. The promise was made
two years ago to review it; where is that review? Gathering
evidence is no excuse for not formulating principle, and I can
offer this piece of evidence right away: legal costs eat up
chunks of the assets. Unless it is reformed, the no-fault divorce
law will fail to achieve its aims. Will the Minister assure the
House that vested interests are not blocking reform, and will he
give a timetable for completion of the financial provision
project?
of Tredegar (Con)
My Lords, I do not make any apology for the mediation voucher
scheme; it is important to encourage mediation in family law, as
indeed across the civil justice system more generally. However,
we have committed to exploring the financial provision aspects of
divorce after the Act comes into effect. I cannot give the noble
Baroness a timetable, but I assure her that we will look at this
as a matter of principle and will not be bowed down by vested
interests, whether legal or otherwise.
(LD)
Following the reference made by the noble Baroness, Lady Deech,
to vested interests, I ask: have the Government had
representations from solicitors practising in this lucrative
area, or from members of the family Bar, to keep fault as an
issue in financial provision proceedings? If so, what was the
Government’s response?
of Tredegar (Con)
My Lords, I have not had representations from those entities, but
I dare say that the department might have done. We get
representations, frankly, from all areas of the legal profession,
and indeed more broadly, all the time. We will look at this issue
on its merits. We have set out that we want to make sure that
financial matters are dealt with as amicably as possible. The
divorce Act will be a very good start and, as I say, we are
encouraging it through family hubs, mediation vouchers and many
other ways too.
(Con)
My Lords, I speak as a foot soldier operating under the current
system. I would like to explore with the Minister the redundancy
of the current legislation, which is now 40 years old. Society
has changed, as has the way we operate, and the rules are so left
to the judge’s discretion that there is an industry—I am almost
ashamed to practise in it—which fine-tunes, for money,
applications for ancillary relief because no one can predict the
outcome of such an application accurately. We talk about the
mythical mediator, but the mediator has to know what the rules
are, because how can they mediate without the rules being clear
and explicit? The noble Baroness, Lady Deech, and I—
Noble Lords
Question!
(Con)
I would like my noble friend the Minister to be nailed down to a
timetable, and I would like to know what that is because—I was
going to build up to the question—we are fully welcoming the Act
that Parliament has passed facilitating divorce without the end
of the financial remedies being sorted. We need a timetable.
of Tredegar (Con)
My Lords, I am not sure whether my noble friend is a foot solider
or somewhere between a major-general and a field marshal in this
area of the law. May I gently suggest that perhaps not all
lawyers charge by the word? I respectfully say that in this area
of law, as in many areas of law, there is a balance to be struck
between discretion on the one hand and certainty on the other.
You need clear rules, but you also need a judge to have
discretion to do the right thing in the individual case. That is
what we will be striving for when we look at this area of the law
about financial provision on divorce.
(CB)
My Lords, as a former foot soldier who tried a very large number
of these cases, I believe it is a far more complicated area than
either the noble Baroness, Lady Deech, or the noble Baroness,
Lady Shackleton, has said to the House. I would be very unhappy
with a timetable; the Government ought to get on with it, but
they need to take a lot of sensible advice before they put
forward proposals. That is my suggestion to the Minister.
of Tredegar (Con)
My Lords, I am very grateful for that question. Of course, we
will take advice from a broad range of stakeholders and others.
Indeed, in preparing for today I also looked at the laws in other
jurisdictions. Although it is fair to say that, for example,
prenuptial agreements are enforceable in Spain, which they
generally are not in England and Wales, they are not enforceable
if the judge considers that they are detrimental to the children
or seriously damaging to one of the spouses. So again, the House
will see that that balance of certainty and discretion is so
important to try to reach in this area.
(Lab)
My Lords, as the noble Baroness, Lady Deech, said when she first
proposed this Question, the whole point was to make divorce, by
being no fault, less acrimonious and less difficult. The missing
part is the financial aspect. In the current system that creates
more acrimony and difficulty, especially when children are
involved. When the noble and learned Lord, Lord Keen, wrote to
the noble Baroness, Lady Deech, he said that such a review would
take “two to three years”. That plays into what the Minister said
just now about how complex and difficult this is, but does that
not mean that we ought to make a start as soon as possible? It
feels like the ghost of Sir Humphrey is around, with “in the
fullness of time”, “as resources allow” and “in due course”.
Nobody is asking the Minister to come up with answers now—only to
start the review, which is urgently needed.
of Tredegar (Con)
My Lords, I hope I have made it clear that we are talking about a
matter of weeks once the Act comes into force. We will look at
this area very carefully. I know that the previous and current
Lord Chancellors are focused on this area. Looking at family law
generally, we want to see fewer private family cases before the
court and maintain the public family cases before the court. Many
private family cases really ought to be resolved out of court,
through mediation and in other ways. We will work towards
that.
(Con)
My Lords, how have the Government strengthened support for
separating couples in preparation for the commencement of this
divorce Act on 6 April? In particular, how will they help
ex-partners and children cope with the considerable emotion and
conflict that being unilaterally divorced will provoke and which
might last for years?
of Tredegar (Con)
My Lords, we of course recognise that divorce can be a stressful
time for families. We want to make sure that support is there for
separating couples. We have invested in family hubs and the
family mediation voucher scheme. We also have a Reducing Parental
Conflict programme. However, we also think that the new divorce
Act will lead to more amicable divorce and will itself take some
of the heat out of the issue.
(LD)
My Lords, let us not put the cart before the horse by changing
the law before thinking about the most acrimonious part of
divorce. Is it not true that a no-fault divorce does not
necessarily mean that there was no fault? In which case, is it
not all the more important that there is equality of arms between
the two people concerned when it comes to mediation on a
financial settlement?
of Tredegar (Con)
My Lords, yes: no-fault divorce means that the question of fault
is essentially irrelevant to the fact of the divorce. As to
equality of arms, that is where mediation is so useful. Families
who participated in the mediation voucher scheme tell us that it
really took the heat out of the issue as they could sit down
outside a court setting and resolve their issues. For every
multi-million pound divorce that you read about in the papers,
hundreds—indeed, thousands—of divorces go through without too
much acrimony, other than the acrimony perhaps inherent in the
fact of being divorced. We want to build on what we think is a
movement in the right direction.
