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Lord Meston: My Lords, the noble Baroness said very realistically that this is an important amendment. Indeed it is. It proposes to replace the existing provisions of Section 25 of the Matrimonial Causes Act, which is familiar to family lawyers in England and Wales, with a set of guidelines based on Scottish law and relating to matrimonial property.
At earlier stages of the Bill, reference was made to the differences between English and Scottish divorce law. Indeed, a long time ago, one of the factors which contributed to the Matrimonial Causes Act 1857 was protracted conflict between English and Scottish law. Scotland was then the place where divorce was much easier.
English law on property and financial matters has been in its present form since 1970, with some modification in 1984. It is the product of the Law Commission and detailed parliamentary consideration before each enactment.
The general perception among English lawyers is that Scottish law is rather less generous to wives and perhaps less flexible. That perception may or may not be correct. I think that it can be said that where the marriage of an English wife and a Scottish husband breaks up, the Scottish husband tends to head north of the Border and he goes to see his lawyers in the hope that they can get in first.
The amendment is important. It is really too important for the Third Reading of this Bill. What is required for any serious consideration of this important point is a full comparative analysis of the strengths and weaknesses of the law in each jurisdiction. I would be very reluctant to accept anything which drives a coach and horses through 25 years of English law without very careful and full debate. We must be sure of the merits of anything which will replace English law.
Without clear evidence, I would question whether English law as it presently stands could in any sense be described as an incentive to divorce. The noble Baroness suggested that Scottish law appears to be fairer. There is certainly more emphasis on an equal division, but, even in Scotland, that does not always happen. As I understand it, a 50:50 split is not always a fair split; indeed, it is not always a practical split, especially when there are children involved.
English law concentrates rather more on other discretionary factors--for example, the length of the marriage, the contributions of the parties, the loss of pension rights and other disparities. It might be said that the discretion is a little more subtle. Even pension splitting, which may well come into effect and to which reference has been made, I do not understand necessarily to be the equal splitting of pensions but rather a provision designed, if it is enacted eventually, to enable a split either equally or in some other proportion.
The noble Baroness also suggested that Scottish law was more certain and, indeed, that English law was undesirably uncertain. I am not able to say whether a Scottish lawyer is better able to state with any confidence or accuracy the likely result of court proceedings. However, I do know that English law is not so wide in its discretion that cases cannot be settled with a reasonable expectation of what a court would do. The noble Baroness further suggested that lawyers found it difficult to give advice, so vague and discretionary was the English system. Well, some of us have to try to give firm advice. I do not know about fixing the cost of that advice, but I know somewhere where the noble Baroness can obtain cheap and cheerful advice should it be required.
There are of course differences as between court and court, even within a relatively small jurisdiction. That is not simply applicable to divorce law; indeed, it can apply to the quantification of damages for a broken leg. One can have two different judges looking at the same
Lord Stoddart of Swindon: My Lords, I was very pleased to attach my name to the amendment. I agree with the two former speakers that perhaps we ought not to discuss such a matter in great depth at this time of night in relation to this Bill. I understand that the noble and learned Lord the Lord Chancellor has had discussions with the noble Baroness, Lady Young, and has expressed his interest in giving the matter further consideration. I sincerely hope that he will do so.
The noble and learned Lord will remember that we discussed the matter during the proceedings on the Child Support Act. A good deal of praise was heaped on the Scottish system at that time, which the noble and learned Lord gladly accepted with alacrity. After the Bill has been passed, I sincerely hope that action will be taken to try to clear what many people believe are grave anomalies in the present law in relation to the distribution of assets on divorce.
There is great resentment, particularly among men who believe that they are badly treated and that on divorce the splitting of assets goes very much in favour of wives, and often unfairly so. That resentment has expressed itself in all sorts of ways throughout the country--for example, in letters to Members of both Houses of Parliament and in demonstrations up and down the land. I accept that many of those demonstrations were occasioned by the Child Support Act, but nevertheless there is clearly a grave problem here which ought to be investigated and which ought to be addressed by Parliament in the near future. That is all I want to say, except to ask the noble and learned Lord the Lord Chancellor if he can give an assurance that this matter will be attended to and will be addressed at an early moment.
Lord Northbourne: My Lords, first I wish to congratulate the noble Baroness on bringing this issue forward. I want to draw attention to an aspect of the matter which, if I have correctly understood the situation, is important and makes the amendment relevant to this particular Bill. If Spouse A is seeking to obtain a divorce, and Spouse B does not wish to have a divorce, and Spouse B has not committed any fault, under the law as it exists at the moment, Spouse A would have to wait five years. Under the Bill which we have before us, Spouse A will only have to wait one year. Therefore that means that this Bill gives an enormous opportunity for gold-diggers and for injustice if an unscrupulous spouse enters into marriage with a view to gaining financial advantage.
My other point, which has also been mentioned, is that it can be argued that the English system as it stands at present can offer incentives to divorce to young women with children. I believe that courts frequently award 75 to 80, and even sometimes 100 per cent., of the family home to the custodial parent, who is usually the mother. State benefits and child support are also tailored to support the lone parent. On the other hand, at a later stage in the marital cycle the man may have the advantage when the children are grown up, and it may be more attractive financially for the man to divorce.
It seems to me from what I hear that the Scottish system is fairer than ours. It has the enormous advantage that people know roughly where they stand. Some sort of criteria for decision are laid out on the face of the Scottish legislation. If that were to be transposed into this Bill, that would surely give a sounder basis for mediation criteria; criteria to help enable sensible decisions to be made at mediation rather than leaving the matter completely open and vague. It seems to me that we have here a great opportunity to improve the law. I hope that the noble and learned Lord will seriously consider the ideas behind this amendment, and consider them for amendment in another place.
Lord Simon of Glaisdale: My Lords, the noble Baroness is greatly to be congratulated in bringing this amendment before the House. It is an important amendment. The noble Lord, Lord Meston, suggested that it was unsuitable for Third Reading but the alternative was to move it after midnight on the final day of the Report stage. The noble Baroness quite rightly withdrew it at that stage, when it would have been indecent to discuss a proposal of such importance.
This is a divorce Bill, although it parades under the name of a family law Bill. It is a divorce Bill with a domestic violence Bill left over from last Session attached to it. However, the law can intervene in support of marriage as well as in its destruction. One of the ways in which it can intervene in support of marriage is in adjusting the law of family property so that it reflects the promise made at marriage of the sharing of worldly goods.
At the moment, for a married woman to acquire any interest in the matrimonial home she has either to become a widow or to be divorced. At an earlier stage of the Bill I proposed, as schedules to the Bill, two Law Commission Bills which are of long standing dealing precisely with matrimonial property during the subsistence of the marriage and not merely after divorce. My noble and learned friend was, I thought, fairly encouraging, but he has since written to me to suggest that that matter, which has been outstanding with Law
In the meantime, I hope that my noble and learned friend will take the amendment away, consider it very carefully, and, if it so commends itself to him, table the necessary amendments in the other place.
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