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Baroness Deech’s Divorce (Financial Provision) Bill to receive second reading on 27th June

Bill aims to make financial provision ‘simpler, more certain and democratic’

The Divorce (Financial Provision) Bill, a private member's bill, introduced in the House of Lords by Baroness Deech in February 2014 will receive its second reading on the 27th June.

Baroness Deech says that it is urgent for Parliament to revisit the fundamental law governing financial provision for four principal reasons:

  1. The law is uncertain. Decisions used to be based mainly on "need". Equality of the spouses then became a feature in judgments; and recent decisions have added consideration of compensation, and sharing the fruits of partnership, while statutory amendments provide for pension division and a clean break between the couple, if possible.  
  2. The leading judgments inevitably arise from "big money" cases that go to appeal, and are not necessarily helpful for low income families. We now have a largely judge-made law, which bears little resemblance to the statute, and there has been no public or democratic input. The wide exercise of judicial discretion, careful and sensitive though it is, leads to unpredictability and uncertainty, and therefore militates against mediation and settlement out of court. Judges differ with each other, and decisions conflict as new principles are enunciated.
  3. Legal aid has been removed from this area of the law. Many parties of modest means are left unrepresented and have to attempt to litigate on their own in emotional circumstances, with no understandable or settled principles to guide them in dividing assets and income. Judges are having to intervene, which is not their task, and brings delay. Long drawn out proceedings are detrimental to children and they are costly. There are many accounts of cases where nearly all the assets are wasted on the costs of litigation. E.g. a husband was awarded £50K but was left with a bill of £490K in costs; in another the assets were £25m, costs £1.7m; in another the couple's assets were £42K, and the wife's costs came to £16k; assets of £4m cost £850K to settle; and there was one where the costs swallowed up the entire assets. 
  4. Organisations such as Resolution and the Centre for Social Justice have called for reform over the years, but without result. A recent Law Commission report recommended that prenuptial agreements be binding, with certain exceptions (arguably too many, for the more loopholes, the more likely it is that the agreement will be challenged: one couple recently spent £600K litigating over whether or not the prenup was binding, and another spent £2m); and they are continuing work on financial provision which they estimate will take years to complete.

She says that the Bill will:

The Bill, as introduced, is here.

17/6/14