Financial Provision on Divorce

Lord Marks of Henley-on-Thames Excerpts

Monday 10th November 2025 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I start by declaring an interest in that, although I do no divorce work now, I once did, and I am still—rather by default, I fear—a member of the Family Law Bar Association. I join in congratulating the noble Baroness, Lady Deech, on introducing this debate in an area where she has campaigned for many years. I also thank the Law Commission for its very hard work in producing the scoping report, which shows by its very length what a daunting task reform in this area will be.

This debate has exposed a tension well described by the noble Lord, Lord Faulks, between flexibility and judicial discretion, on the one hand, and certainty and predictability on the other. Those advocating flexibility and judicial discretion emphasise the importance of individual judges weighing up factors in particular cases and deciding how to apply them, in applying Section 25 and to reach fair decisions. Those advocating certainty and predictability argue that the present law does not make it clear to divorcing parties where they stand on how financial provision orders are to be made. That is particularly unfortunate when so many couples are without legal advice or representation.

The Law Commission’s scoping report said:

“The law lacks certainty, and accessibility to an extent that it could be argued to be inconsistent with the rule of law”.


The charge of inconsistency with the rule of law may be overstated, but the charges of uncertainty and inaccessibility are serious. The noble Baroness, Lady Deech, set out this case, argued by her persuasively, as I have said, for many years, supported by others, including the noble Lord, Lord St John of Bletso, and the noble Baroness, Lady Shackleton, who both concentrated on the question of nuptial agreements.

The Law Commission recommends a full review of the law but it does not express a preference between the four options it considers, stating that a full report is required once a choice between the four options has been made by government. The first of those options is codification of the existing law. I submit that that represents no real reform, in an area where it is quite clear that some reform is needed. The second option, codification-plus, would involve consideration of the difficult issues in this area: the position and enforceability of nuptial agreements, considered by the Law Commission in 2014; limits on the duration of spousal and child maintenance; the place of conduct in financial provision proceedings, including domestic abuse; pension sharing; and limitation. The third option is guided discretion, which largely overlaps with the second option of codification-plus. It would leave judicial discretion in place but set out clearly the principles on which it should be applied. The fourth and final option is the default regime, applied in some other jurisdictions, which would set out a general rule—probably some kind of community property arrangement—subject to exceptions to be more fully defined.

I argue that the Law Commission is rather ducking the central issue in failing to express a preference between the four options. For my part, I favour retention of some judicial discretion in the context of greater clarity and certainty, as does the noble Lord, Lord Mendelsohn. I agree fully with the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Meston, that some judicial discretion and flexibility continue to be needed to cover unusual cases.

I understand the argument that this is a political decision, ultimately for Parliament, but that should not prevent the Law Commission expressing a view on the options it has thoroughly researched. The Law Commission has, in the past, made radical and fully considered recommendations for reform. Before we legislate, I would far prefer to see a full report, including consideration of all the options and specific recommendations from the Law Commission to Parliament. It would then be for Parliament to legislate on financial provision law for the future.