I will leave it to you to decide, at the end of my talk, whether I am being revolutionary, or simply trying to bring England into line with Scotland, most of the Western and common law world, and indeed into the 21st century. One of the things that started me writing this during the summer was this news story about a female barrister, Amy, who complained that a male colleague had told her that when she got married she would be a kept woman and would no longer need to work. I am more interested in the mindset of the male colleague than I am in the reaction to his comment.
As I expect you know I introduced a Bill, the Divorce (Financial Provision) Bill into the House of Lords. It has passed through the House twice and will be resurrected next session. I have been urging reform ever since first writing about it in 1977, having noted that there has been no significant statutory reform since 1973, with a little in 1984. Some well informed friends have said to me that they did not know there were any statutes governing financial provision - they thought it was entirely discretionary, and in fact, it is. I was at the Law Commission, albeit as the lowliest of footnote checkers, in the late 1960s when divorce law was reformed, ostensibly to introduce no-fault and irretrievable breakdown as the bases. And I asked the simple question then, as I will if the latest no-fault divorce reform is introduced, what is the basis for requiring one spouse to keep the other ex-spouse, sometimes for life, when a marriage ends without fault?
There are about 110,000 divorces in England and Wales (for brevity I will henceforth just mention England) pa and financial orders are made by the court in about one-third of them. Recent research has shown that very few maintenance orders are made, and most of them are for small amounts and for couples with children (Miles & Hitchings). Their research did not deal with costs, prenups, property sharing or the need to keep children until they have finished university, and it was undertaken before the removal of legal aid. Interestingly, in the light of forthcoming divorces to be obtained in 20 weeks, that research showed that once there was more emotional readiness, reached over years, a settlement was more likely. Costs and unpleasantness also led to settlement. Variation in judges' attitudes, variable legal advice and disagreements about fairness were also issues. Presumably litigants in person are less likely to settle, have no benchmarks and little idea of what the law is, as I have seen for myself.
Again, noting forthcoming no fault divorce reform, the divorce decree has become a largely administrative process, (Owens was a one-off, possibly used to highlight the desire for change); but the division of income and property between spouses is often contentious, long drawn out and expensive because of the uncertainty of the basic principle in this area, the development of the law by judges in the last 30 years and changes in society, for example that 72% women are economically active, divorce is more common place, there are civil partnerships and same sex marriage. The financial settlement lasts a lifetime, whereas the divorce, whatever its basis, is all over in months. I think it is now urgent for Parliament to revisit the fundamental law governing financial provision, even if they do not agree on my proposals.
My proposals are that the default position should be equal division of all the property and pensions acquired by the couple after marriage. Assets acquired before marriage, inheritances and gifts would remain in the possession of the owner and not be available for distribution. I have noted recent cases concerning the bank of mum and dad, where a parent has given a large sum to the married son or daughter with which to buy a house. Following the divorce, is it right that one of the divorcees should take the benefit of that sum, whether regarded as a gift or a loan, at the expense of the parents-in-law, whose retirement may be financially blighted?
In effect in a short marriage there would be little to divide, but in a long marriage where the couple started with little, everything would be divisible. The matrimonial home might always be regarded as matrimonial property or retained for the accommodation of a mother and children under 21. There are guidelines in the Bill to disentangle the situation where pre-marital assets are used over a long marriage to buy and improve marital property, so that they become post-marital assets available for division. Provision is made for only short term maintenance (as in Scotland and Scandinavia and other countries, and as happens in actual practice) because it is hard to enforce, relatively few orders are made (about 12000 a year) and it is more sensible to load the separation of assets in favour of property, pensions and lump sums rather than ongoing periodical payments. Moreover they cause more upset than any other form of support, and if government policy is to reduce the acrimony of divorce, this is where they should start.
All of this is modelled on Scottish law. Scots law received an excellent review from a recent inquiry, Built to Last, undertaken by academics from Glasgow University. Let me give you some quotes from that report: the legislation (Family Law Scotland Act 1985) has been successful in achieving one of its aims which was to encourage parties to reach their own agreements about the financial and property consequences of divorce. . . .There was also strong approval for the concept of matrimonial property, with many interviewees highlighting the clarity and certainty of the matrimonial property regime as being an aspect of the legislation which worked well. . . .This is a well designed statutory framework with no fundamental need for reform. It is regarded as combining certainty with flexibility in a way which facilitates the work o each group of legal actors who put the legislation into practice . . . .English law is broken and needs mending: but ours doesn't. Ours can always be improved, but generally speaking it's a gem.
The greatest contrast between Scotland and England is the uncertainty of our law's application. Let me draw your attention to the judgment in Sharp  EWCA Civ 408 where 3 judges of the Court of Appeal found it necessary to analyse the words and nuanced meanings and situations of some well known cases in the field, almost without reference to statute and in a forensic way once familiar to me and probably to you, as the skill we had to deploy as students parsing House of Lords judgments. And of course none the clearer at the end. They are still arguing about "forks in the road", short versus long marriages, children or no children, the wealthy versus the poor, the home-maker versus the working wife, which judges find confusing when both spouses have jobs. And I suspect that equal division was challengeable in Sharp only because the wife stood to gain by this; it probably would not have had the same result had the boot been on the male foot. Likewise Granatino, the prenup case, which was about protecting a wife's wealth, not a husband's. Decisions used to be based on need; then equality began to feature, and recent decisions have added to the mix compensation and sharing the fruits of partnership. I have been unable to find a judgment where the government guidance on financial needs has been cited.
The leading judgments usually arise from big money cases; the law is largely judge-made, bearing little resemblance to s.25 MCA, and there has been no public or democratic input. The wide exercise of discretion, careful and caring 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. I think the uncertainty is so great that it can fairly be said to offend against the rule of law.
Where there are litigants in person, judges are having to intervene, which is not their task, and guide them to a division. Long drawn out proceedings are costly and detrimental to children, whose assets are going down the drain of legal costs. I have a dossier of cases where nearly all the assets go on costs, e.g. a husband awarded £50K but was left with a bill of £490K; assets £25m, costs £1.7; assets £42K, wife's costs £16K; and there was one case where the costs swallowed up the entire assets. You will all have seen reports of cases where millions are at stake and the costs are commensurate. You may say, well they can afford it and they should not have protracted the fight. But the same is true lower down the asset scale, and we know who benefits from this. David Lloyd George apparently told the House of Commons in June 1910 that he had never seen a bill for reform of the law that lawyers did not oppose "if it was to have the effect of reducing the charges in the profession to which I have the honour to belong." (Hansard 15 June 1910 vol.7 col. 1337, Consolidated Fund Bill debate.)
Organisations such as Resolution and the Centre for Social Justice have called for reform. It saddens me that family law barristers cannot put forward a single reform that they would like to see; that their attitude reminds me of the solicitors' take on conveyancing and whiplash changes; and as one very senior judge said to me referring to senior family law barristers, they are blinded by their own self interest.
The brave (as Sir Humphrey would have said) Mr Justice Mostyn has pointed out in his lecture this year to the Hong Kong Family Law Association that "most so-called discretionary powers are in fact nothing of the sort, but are in fact commands to render a qualitative or value judgment." And I love his quote from Tennyson about inconsistency: that codeless myriad of precedent, that wilderness of single instances, thro which a few, by wit or fortune led, may beat a pathway out to wealth and fame.
A recent example of the ills of uncertainty are prenups. I am often taken to one side by elderly female peers to beseech me to reform the law because they are reluctant to marry or remarry their long term partners because of fearing the loss of assets, should there be a breakup, that would be detrimental to their children. You would be surprised at the energy of the beating hearts under the ermine . . .But you should not be, because the Office for National Statistics has shown that the number of silver splitters, that is divorcees over 33 has more than doubled in the last few years. It is also reported that they are going to lawyers for advice on prenups. Especially those who have been through one divorce don't want to experience the consequences a second time. Others decide not to remarry. Judging by the number of letters I get from members of the public, they are well aware and intensely anxious and upset by financial provision law. I have never had a letter in support.
Lawyers advise in favour of prenups but warn that their enforceability depends on the court's view of its fairness. The Law Commission recommended their adoption and have published a fully drafted Bill to implement this, but the government have taken no action. It is questionable whether the courts are giving more force to them than they used to, before Granatino. For example in KA v MA  EWHC 499, the court did not find duress or exploitation of the wife who had signed a prenup, she had taken professional advice but the judge nevertheless considered that the wife's housing needs in the amount of £1.35m had to be met on top of the prenup figure of £1.6m, and estimated income needs at £1.6m but reached via a Duxbury calculation. £300K had already been expended on costs and the rest had to come from the allocation to the wife, no doubt severely depleting it. So much for certainty of prenups. In Ipecki v McConnell  EWFC 19 the ex husband, a hotel worker, signed a prenup with his wife, an heiress, but was awarded £1.3m for a new house and an allowance for the rest of his life in part because his legal advice was suspect. Costs amounted to half a million. According to his profile on LinkedIn he is head concierge at the London Hilton Metropole. I have seen other cases where the costs of determining the validity of the prenup amounted to £600k and £2m.How can lawyers advise on the utility of those agreements?
My Bill would make prenups and postnups binding, with independent legal advice, the usual constraints of contract law, full disclosure and as long as entered into at least 3 weeks before the wedding. There is no evidence that marriage breakdown is encouraged by them; most countries where they are common have lower divorce rates than we do.
I have mentioned the opposition of the Bar to reform - to any reform - some judges also. In the case of some it is because they have invested in the minutiae of this law for their entire professional careers. But the depressing opposition of Baroness Hale has to be examined.
In her talk to the International Centre for Family Law, Policy and Practice Lady Hale took the line that the state should be relieved of looking after the family and the private family should look after its own. It would be welcome if surprising were that policy to be followed in the maintenance of children from broken homes, care of elderly parents, not to mention the provision of council housing, benefits, freedom of testation and so on, but it seems to be only inter spousal maintenance that she is referring to. I have campaigned over the years for more protection and tax relief for siblings who have lived together for decades, only to be met with the answer that such protection is only appropriate for "intimate" relationships. So it seems that only those intimate relationships and parent/child ones figure in the system. Moreover, Lady Hale rested her statement on a 90 year old case, Hyman v Hyman, where the judge's aim was to prevent the wife being, as he said, thrown upon the public for support. This case was not beyond criticism even when I was a student, as a throwback to the time when the law was reluctant to intervene in domestic abuse, marital rape, bad parenting and property occupation on the ground that the family was a law unto itself. More recently Hyman has been regarded as an impediment to the desideratum of settlement. It can hardly have been said to have survived Granatino unscathed. I note that in that case, Lady Hale was the dissenter on the familiar ground that women are vulnerable and do not know what they are agreeing to. She again criticised binding prenups in her speech. I find it odd that some women who have always been self supporting have an attitude to others that I cannot describe as patronising - maybe let me coin a new word "matronising". Lady Hale's coat of arms reportedly contains the motto Omnia Feminae Aequissimae. I agree with the sentiment and I think it is important to apply it to all women not just those who succeed at the Bar. I note too that in a speech in September at the launch of Cambridge Women in Law, Lady Hale gave as her tip for female success in law, that one should choose the right partner. I will revert to this fundamental belief of woman as complete only with a partner, the overlooking of single independent women, later on.
This is surprising from someone who once asked "whether the legal institution of marriage continues to serve any useful purpose" (Hoggett, Ends and Means: the Utility of Marriage as a Legal Institution in "Marriage & Cohabitation" eds. Eekelaar & Katz 1980), at a time when cohabitation had few legal consequences. It is even more surprising given that Lady Hale was once a Law Commissioner and the Law Commission reported in 2012 that there should be legislation to regularise prenups. Again England is almost alone in most European and N. American countries in not accepting prenups as automatically valid, and agreeing a matrimonial regime is traditional in civil law countries such as France. This judicial stance put me in mind of Lord Sumption's thesis in his recent Reith lectures, that judges should be wary of imposing their personal values on moral and social issues that should be the preserve of the legislature. Judges may well understand and be informed with the best evidence on a topic, but that does not mean that they should be the final or exclusive arbiters on an issue, especially when their own past interpretations of the law may have led to the dilemmas they now perceive.
I now revert to the interesting case of Amy, with which I started this talk. Why is it that it is axiomatic in this country that women, once attached to a man, have a right to be kept and are regarded as exempt from earning a living? Even with the most casual of divorce laws, likely in the near future to enable the ending of a marriage in less time than it takes to unscramble a mobile phone contract, England continues to treat women throughout their lives as dependent on the man with whom they are in a relationship. It will be extraordinary if it continues to be acceptable to attach lifelong indeterminate obligations to an arrangement which is about to become terminable at 20 weeks' notice. (One only wishes that the obligations of fathers to their children after divorce were as strongly emphasised.)
The notion of the dependent wife goes beyond family law. It permeates society. The faint disapproval attaching to women who work and put their children in childcare. The treatment of working and non working wives on divorce, whereas logic dictates that a woman who worked through the marriage ought in reality to get a double bonus. The expectation that the husband's pension is also for the wife. A small but pertinent example. If a man is a Lord or a knight, his wife becomes Lady and keeps the title even if divorced. But the husbands of peers and dames are not recognised. This must be because the status of the woman is forever determined by the man she marries but not vice versa. Simone de Beauvoir captured this in 1949 when she wrote that "man defines woman not in herself but as relative to him . . .she is defined and differentiated with reference to men . . .women live . . .attached through residence, housework, economic condition and social standing to certain men."
The new civil partnership for heterosexual couples was brought in in part because Ms Steinfeld and Mr Keidan said that "the legacy of marriage" which "treated women as property for centuries" was not for them. If sadly their partnership were ever to end, I would not be surprised if old fashioned notions spurred Ms Steinfeld to claim assets from Mr Keidan.
I want to end forever the notion that a wife has no obligation to keep herself or her family. I fear that the hard won advances in higher education and careers for women will be undermined by the general acceptance that she won't have to work. And that fathers need not put as much into paternity and housekeeping because they are the breadwinners. Of course there will be cases where the ex wife cannot keep herself, and then one has to ask why. Is it not better to swing all the assets that are available on a breakdown to the support of the children? These are not revolutionary questions, except to certain audiences in the UK. It is simply what is taken as given in most other countries. My Bill is a step towards changing attitudes and bringing fairness to financial support. 70 years on from de Beauvoir's description I am calling for women to promote their individuality.