After two years of work – and decades of studying and lecturing about the subject – I have finally introduced my private member’s bill, the Divorce (Financial Provision) Bill. It is about the division of money and assets on divorce (and on the dissolution of a civil partnership as well). The basic law on this has not been debated in Parliament for 30 years, during which time we have experienced profound changes in society (women at work, divorce itself no longer based on fault, and commonplace, civil partnerships and same sex marriage.) The basic law about dividing assets is in s.25 of the Matrimonial Causes Act 1973, which lists the many factors that have to be taken into consideration by the court, and which has been amended to take into account pension sharing and the desirability of a clean break in the financial relationship between the ex-spouses. There are so many factors that have to be taken into account that decisions have become unpredictable, and the judges have tried to update the law, in the absence of Parliamentary reform, by introducing principles of general applicability. They used to say that “need” was the main consideration; then in an attempt to keep up with the times, the principles of “compensation” and then “fair shares of the partnership” were superimposed by judges. This has made it very hard to predict quite what one might expect to get from the family assets on divorce, and it is said that different judges in the various regions of the country come to different conclusions. Lack of predictability makes mediation and settlement out of court harder. The last straw is the removal of legal aid from this area, with a resulting great increase in the number of spouses having to represent themselves in court at one of the most troubled times in their lives, with consequences that will affect the rest of their lives.
I have looked at all the proposals made over the years and at the law in other countries. London is called the “divorce capital of the world” because awards to wives are more generous here than they would be anywhere else, and until recently our courts did not treat as binding any agreements the couple might have made before or during the marriage to organise their own division of assets. In a nutshell, my Bill would make such prenuptial and postnuptial agreements binding (with certain conditions to ensure that they are properly understood and entered into freely). Most couples probably would not want to make them when they are engaged, but those who have been married before and want to preserve assets from their first marriage for the family of that marriage might well avail themselves of the opportunity. My Bill would also introduce the system which prevails in Scotland and much of continental Europe and N. America, sometimes called the “division of postmarital assets” – that is, the norm would be a 50-50 division on divorce of all the property that the couple acquired after they were married. Not what they owned before the marriage, not inheritances and gifts and not what they agreed to exclude. I have not got the space to go into the details, but it ought to be a fairer, cheaper system, and it ought to help to reduce the vast amount spent in legal costs in fighting over ownership of the property on divorce.
As a private member you get hardly any help with drafting. It is a very skilled activity, way beyond my capability, and it was hard to find an expert to help me, but I did. I am fortunate in that I have a slot for the Second Reading, the initial debate on the principles of the Bill – but it is on a Friday afternoon and I fear that many peers who have something to contribute will be unable to attend. It would be a major achievement to persuade the government to take up the cause of reform, and to do it promptly. And it would benefit the public if they were able to discover what the law was and how it might apply in their case without having to go to court. Delay, hostility and expense are not good for the children caught up in it all.
To be continued, I am sure.