Financial Provision on Divorce

Baroness Levitt Excerpts

Monday 10th November 2025 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)]

My Lords, I begin by joining all other noble Lords in thanking the noble Baroness, Lady Deech, for securing this debate. The noble Baroness has, as other noble Lords have said, been unceasing in championing reform in this area, and I was very grateful to her for meeting me before the debate so that I could be sure I understood the issues she was going to raise. I also thank the Law Commission for the scoping report which has formed the basis for today’s debate, and indeed for its wider contribution to law reform.

As the noble Baroness, Lady Deech, and other noble Lords said, she and others have long campaigned for a change in the current law, because they are of the view that there is not enough certainty about it. The reasons are that it leaves too much to judicial discretion, and, because most of the principles are contained in case law, it is very difficult for couples to understand without consulting a lawyer. It was in this context that the previous Government asked the Law Commission to review financial remedies law, examining whether the current framework in England and Wales delivers fair and consistent results.

The report identifies not merely technical issues but matters that affect real families, often at times of great vulnerability and distress. Its conclusions go to the heart of the family justice system: namely, is the system fair, and can we and our fellow citizens have confidence in it? The Law Commission’s verdict is clear: the existing law lacks cohesion and fails to give parties the certainty they need. That is of course a troubling conclusion for any Government to absorb. I was particularly struck by its finding that the law can sometimes not only fail to resolve disputes but may even actively encourage continued conflict. That is a sobering conclusion and it underscores why this debate is timely.

As many noble Lords have made clear, because this was a scoping report, rather than setting out its conclusions, the Law Commission offered four possible models for reform. Each of these offers a different balance between judicial discretion and legal certainty. These have been described in the speeches of others, principally that of the noble Lord, Lord Marks of Henley-on-Thames, and I shall not rehearse them further.

This brings me to the Government’s plans. Your Lordships will be aware of the Government’s manifesto commitment to strengthen the rights and protections for those in cohabiting relationships. Today, over 3.5 million couples live together, more than double the number 30 years ago. One of the reasons why the Government are so concerned about this is that, when such relationships come to an end, women and children are often left without financial security. Many of them do not even realise that they are left financially insecure until it is too late. They do not realise it because there is a widespread myth that the law recognises common-law marriages. In fact, it does no such thing, and the children of such relationships are frequently left unprotected.

Earlier this year, my noble friend Lord Ponsonby confirmed that we will be consulting on cohabitation reform. I repeat that commitment today, but I want to go further, because I have listened carefully to your Lordships’ concerns about uncertainty and conflict in the current system of remedies on divorce. The Government share those concerns and are determined to look more at these issues and address them. I therefore confirm that our consultation will not only consider cohabitation reform but will also explore the challenges identified by the Law Commission in relation to the current law on financial provision on divorce.

I realise that this may disappoint many noble Lords. I particularly bear in mind that the noble Lord, Lord Faulks, gave such a charming and persuasive invitation to me to say exactly today what we are going to do, but I am afraid I am going to have to resist it. Some noble Lords may wonder why we have not simply asked the Law Commission to continue its impressive work, plumped for the one of the options, as the noble Baroness, Lady Deech, suggested, and told the commission to get on with it. However, as has been made clear in this Chamber tonight by the speeches of noble Lords, many of whom have great expertise in this area, there is disagreement even among them as to which option we should be going for.

So the answer is that, when we consult on cohabitation reform, we have a real opportunity to examine the question of break-up and financial remedies in tandem; we are not going to do it piecemeal. Consulting on financial provision alongside cohabitation will bring consistency and fairness across marriage, civil partnerships and cohabitation, recognising that reforms in one area may have implications for the other.

[Lord Sandhurst (Con)]

I hesitate to interrupt, but does the Minister not appreciate that marriage is a status but non-marriage is not a status, and that the time has come for the two to be looked at separately: divorce on the one hand and how you look after those in other relationships on the other? The Law Commission has done a lot of work and the ground has been laid. We can go down parallel paths, but they should not be linked and heard at the same time. I see everyone else in this Chamber nodding.

[Baroness Levitt (Lab)]

I am afraid I am going to have to disappoint the noble Lord, Lord Sandhurst, because our assessment is that looking at these matters piecemeal will run the risk of creating new disputes and injustices. In the end, it is about making sure principally that children are protected when the relationships from which they are born end up dissolving.

I assure the noble and learned Baroness—

[Baroness Deech (CB)]

Perhaps I might point out to the Minister that the consultation on cohabitation was carried out very thoroughly by the Law Commission. It did it some years ago and, as far as children go, you cannot protect them if the splitting couple—which is very often the case with cohabitants—have no money, and we are not enforcing child maintenance in this country. So do not do the work all over again—it has been done.

[Baroness Levitt (Lab)]

I am afraid that I will disappoint the noble Baroness. This is a manifesto commitment, and it will happen. We will issue our consultation by spring next year.

[Baroness Butler-Sloss (CB)]

I am very grateful to the Minister. The one thing that the House has agreed on this evening is prenups. It would be very simple to introduce prenups, and it would not cause any difficulty for anything else. It would not stop the Government looking at cohabitation with divorce. Prenups is a special situation, and I have become convinced that they would be entirely sensible.

[Baroness Levitt (Lab)]

It is very difficult to resist the noble and learned Baroness, with all her experience, but I am afraid that I will have to do so.

I pay tribute to the noble Baroness, Lady Shackleton, who is greatly admired and respected, not just because of her expertise and experience. The points she raised were supported across the House by almost all noble Lords. It is frustrating that the previous Government did not give a full response to the Law Commission’s 2014 recommendations on nuptial agreements. As we are working towards our consultation, we are carefully considering this issue. It will be taken into account, to ensure that we have a consistent framework, which will be designed mainly to put children at the centre of what happens when relationships break down.

[Baroness Shackleton of Belgravia (Con)]

I am sorry to interrupt the Minister. To what extent does a prenuptial agreement influence the protection of children? We cannot legislate in a prenup any rights in relation to them. It is open to the court—every single avenue is open to the judge. Someone simply cannot contract out.

--- Later in debate ---

[Baroness Levitt (Lab)]

I am grateful to the noble Baroness. One of the issues that the Government need to consider when deciding what to do about nuptial agreements is whether—and, if so, how—such agreements provide certainty and fairness for both parties while protecting the interests of any children. That is why they will all be considered as part of one piece.

I turn briefly to the points made by other noble Lords. The noble Lord, Lord Mendelsohn, raised a number of questions, including how conduct will be treated in financial remedy proceedings. I have listened carefully to the matters raised about that. The Law Commission examined it closely, and as we prepare for consultation, we will carefully consider what it has said. Challenging violence against women and girls is a priority for this Government and will be central to our consideration about the issue. On the matters he raised about religious courts, I will have to write to him.

The noble Lord, Lord Patten, raised the issue of children. Very often, as I have already said, those are the children of cohabiting partners. We are concerned to ensure that children are prioritised at all points.

The noble and learned Baroness, Lady Butler-Sloss, raised many issues; the noble Lord, Lord Meston, agreed with some but not all of them. Again, I make the point that, even with the experience in this House, not everyone is agreed on the right way forward. The noble Lords, Lord Marks of Henley-on-Thames and Lord Sandhurst, could not agree on the right way forward either, which is why we will consult.

The points raised in the debate go to the heart of fairness and certainty for thousands of families at a time of great personal difficulty. I therefore thank again the noble Baroness, Lady Deech, for tabling this Question for Short Debate. I thank noble Lords for their contributions; I have listened to them very carefully and they have given us a great deal of food for thought as we move towards the consultation.