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Lord Astorof Hever moved, as an amendment to Amendment No. 58, Amendment No. 58A:


Line 14, at end insert (", and
(c) is made in terms to be prescribed in regulations")

The noble Lord said: I thank the Minister for explaining in such detail the changes, or "restructuring" as she called it. Although she said that there were seven provisions, she concluded by saying, "Sixth and finally", so perhaps she would respond to that point.

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With regard to Amendment No. 58, I understand the three-tier proposals to cover all eventualities. They are for the most part structural, but they appear complex. I believe that my noble friend Lord Buckinghamshire will agree with that. I recall the words of Harriet Harman, the then Secretary of State for Social Security, in a foreword to the original consultation paper on pension sharing on divorce, published in June 1998. She expressed the view that


    "The challenge is now to make pension sharing work in practice--to translate broad principles into practicable and workable arrangements in areas--pensions, family and tax law--which are notorious for their complexity". I hope that pension sharing will not prove to be too onerous a burden on pension schemes and that the principles, practicality and workability are borne in mind by the Government.

Because the Family Law Act 1996 is unlikely to be in force before the pension sharing provisions, the qualifying agreement provisions will not be brought into force until the divorce provisions of the Family Law Act 1996 are brought into effect. Divorcing couples will still be able to come to an agreement about any pension assets, but that will now be contained in a consent order. I want to remind the Government that, whether or not pension sharing is decided by court order, consent order or qualifying agreement, it is absolutely vital that agreed precedents are in place for pension sharing provisions.

We have seen the problems that have arisen from poorly drafted earmarking orders. The standardisation of procedures for pension sharing can only benefit the parties involved from both a cost and administrative viewpoint. I also remind the Government about the need for education and training for all those involved in the new process.

The Government have emphasised the need for simplicity. It looks as though pension sharing is becoming a very complex process. All those involved in pension sharing need reassurance on this point and I should be grateful if the Minister could give that.

Paragraph 4 inserts new Sections 24B, 24C and 24D in the Matrimonial Causes Act 1973 in its present form. As we understand it, new Section 24B gives courts in England and Wales power to make pension sharing orders on or after the granting of a decree of divorce, or nullity. With one exception, this new section replicates new Sections 24D and 24E, which were to have been inserted by paragraph 4 of Schedule 3 to the Bill. The exception is that the courts will not be under an express obligation to make, so far as is practicable, all pension sharing orders in relation to the marriage on one occasion. That obligation was derived from the amendments to the Matrimonial Causes Act 1973 by the Family Law Act 1996 and is no longer appropriate due to delay in the implementation of that Act. We should like an assurance from the Minister that this change to the Bill will not cause further administrative burdens for pension arrangements by involving them in protracted negotiations regarding a pension share.

Paragraph 10 inserts a new Section 40A into the Matrimonial Causes Act 1973. We understand that paragraph 10 replicates paragraph 9 of the existing

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Schedule 3 to the Bill. We should like clarification from the Minister of the meaning of Section 40A(2), which states:


    "If the pension sharing order relates to a person's rights under a pension arrangement, the appeal court may not set aside or vary the order if the person responsible for the pension arrangement has acted to his detriment in reliance on the taking effect of the order". What would "detriment" mean in these circumstances? We would not like to see trustees or managers of pension schemes being put in a position where they had to unravel a pension sharing order that had already been carried into effect.

Can the Minister confirm that Amendment No. 69 is merely a structural device? Will it merely facilitate the bringing into force of pension sharing if Part II of the Family Law Act 1996 is brought into force before the pension sharing provisions?

As the other amendments are highly technical and consequential, we want to read carefully what the Minister said about them. It seems to me at this stage that most of the changes are legal tidying up, and we shall not object to them.

As the Minister has explained in such detail the Government's proposals with regard to the new schedule, we shall not oppose its insertion.

7 p.m.

Lord Goodhart: The noble Lord, Lord Astor of Hever, has ranged rather more widely than the amendment would normally provide for. It might therefore be convenient if I spoke briefly on our reaction to this group of amendments.

The Minister has shown her usual formidable ability to explain extremely complicated legislation clearly and rapidly, and I congratulate her on the way in which she has done it today.

It seems to us that the Government are right not to be proposing to introduce Part II of the Family Law Act in the near future. Part II of that Act was certainly well meant and well worth a try, but there is no point in ignoring the bad results of the pilots. Therefore, I accept that the amendments are necessary in order to bring pension sharing into effect before Part II of the Act is introduced--if, indeed, it is ever introduced. One can see now that it may well never come into force.

Pension sharing is an idea whose time has come. Indeed it has taken a long time about it, because it is an issue that to my knowledge has been in the air for at least 20 years. It is undoubtedly extremely complicated, but the version that the Government have come up with, after very wide consultation, is one that we broadly accept. There may be further questions about it which we shall need to look at on Report, but we have not put forward any significant amendments of our own at this stage.

Lord Habgood: I take the opposite view from the noble Lord, Lord Goodhart. He said that the research done for the Lord Chancellor seemed to show conclusively that the noble and learned Lord was right in postponing implementation of the Family Law Act. We could avoid a great deal of the complexity of what

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we have just heard if the Act were implemented. I do not believe, on the basis of the report, that there is any good reason for postponing it.

I find the reaction of the noble and learned Lord to the report strange. The report that he was given was designed to help plan the information meetings as a preliminary part of the divorce process under the Family Law Act. The report produced some very useful information. What it could not do, and what the researchers said quite explicitly it could not do, was to give any guidance on the take-up of the various services, because the research situation was an artificial one in which a different law was operating; people would respond differently to the offer of mediation, counselling or whatever under those artificial circumstances.

It has been said again and again that the take-up of mediation was only 7 per cent. What the noble and learned Lord the Lord Chancellor has not reported is that of those who attended information meetings 57 per cent said that they would consider mediation and only 39 per cent said that they would be likely to consult a solicitor. Those figures have not been publicised. They do not support what the noble and learned Lord has said, and it seems to me that the Committee should at least express some regret, as I want to, that this decision has been made and has created all these additional complications for us in the Bill.

Baroness Fookes: Before we embarked on the detailed consideration of the Bill I thought that I thoroughly approved of the concept of sharing pensions on divorce. I still do in theory, but I must admit that I am utterly dismayed by the complexity of the provisions put before us this evening, and the necessary changes which the Minister has made have served only to make it even more complex for me. Unlike the noble Lord, Lord Goodhart, I failed to follow all the arguments of the noble Baroness. Indeed, to use a very blunt, everyday phrase, it is now all as clear as mud to me. I shall certainly wish to reserve my position on this matter and look at it again at more leisure.

I am dismayed by the general trend in proposed legislation to become ever more complex, ever more difficult for the ordinary person to understand. It goes very much against the grain with me. I had hoped to see legislation that was much clearer and simpler. The trend seems to be entirely in the opposite direction, and that depresses me no end.

The Earl of Clanwilliam: I do not think that anybody in the Committee disagrees with pension sharing.

It is a great disappointment that my noble friend Lady Young is not present, and that Lady Seear is no longer with us. They were very important in the formulation of the Bill.

I wish to ask the Minister about only one point, with regard to the new Section 40A(4) of the Matrimonial Causes Act 1973. The judge, who must be able to administer the pension sharing arrangement in his chambers, is the one who can reconcile the

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disagreements and know the full extent of the family assets, and therefore find some better method of dealing with the exchange. Am I correct in saying that under that section the judge has the ability amicably to restore order in the family assets?


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