Financial Provision on Divorce

Lord Faulks Excerpts

Monday 10th November 2025 Lords Chamber

[Lord Faulks (Non-Afl)]

I, too, congratulate the noble Baroness, Lady Deech, on introducing this debate, and I congratulate her and the noble Baroness, Lady Shackleton, on their tenacity in bringing these issues before the House.

A lot has happened in society since the 1970s, when Parliament last intervened, and the heavy lifting in the development of the law has been done by the judges. They have introduced in various cases quite a lot of different expressions. I declare an interest as a barrister, and one who was recently instructed in the two cases mentioned by the noble Baroness, Lady Deech: Standish and Potanin. Some of the concepts that they have introduced, such as needs, as already mentioned, present a very different concept of what needs would normally be expected to mean, for example. Then there is the sharing principle, the yardstick of equality, matrimonialisation of property, mingling, compensation, stellar contribution —and then the very difficult thing that judges apparently have to assess sometimes, matrimonial endeavour. I am sure that all of us would ask ourselves from time to time whether we have been sufficiently endeavouring matrimonially.

The problem is that there is a very big discretion. The issue always, for a court, and indeed for so much of the legislature, is flexibility versus predictability. The difficulty is the 1970 Act; the 1973 re-enactment of the 1970 Act contained no statutory aim, just a big discretion. What is fair is rather subjective and can be different in the eyes of different judges. Sir Nicholas Mostyn, a retired High Court judge, never short of a forthright opinion in this area, is quoted in this very substantial document from the Law Commission. He described the approach of the judges as having a “woolly discretion”. His view was that the law,

“will never be predictable, transparent, economical or consistent”

as it is at the moment. Surely, we need to attempt some form of legislation, such as the Bill suggested by the noble Baroness, Lady Deech. I do not know, but I am sure that she would not be wedded to every single word of that Bill. It is at least a significant improvement on the current uncertainty that prevails.

Finally, let me deal with the question of prenuptial agreements. The House of Lords was clear—or at least eight out of nine of them were clear—as to what the approach should be. One would have thought, reading that case, that judges would be all too keen to honour prenuptial agreements where they had been reached. In fact, quite a lot of judges seem to take the view that, if it turns out for one reason or another—and stuff happens in life—that the prenuptial agreement does not seem to them to be fair, as things now are, they find some reason to avoid the consequences of the prenuptial agreement, thereby completely undermining the public policy that was identified in that seminal case.

There is a public policy, I suggest, in favour of marriage, and if people, particularly people in their second marriages, are very hesitant to approach the question of marriage without a prenup—because who knows what might happen and what other people might have claims—it is simply contrary to public policy not to have a statute. I do not find the argument that we cannot do anything until we do everything, which was the answer we got last time from the noble Lord, Lord Timpson, the Minister’s colleague, very satisfactory. Let us do something; preferably let us do everything, but let us not sit back and say we can solve the problem only if we solve every single issue.

The scoping paper does not provide any answers, but it provides some options. I congratulate, rather late in time, the Minister on her appointment. I think she has policy responsibility. Please give an answer that previous Ministers, including me, were unable to give.