Contribution
My Lords, as a mere academic lawyer, I am grateful to and impressed by all the real lawyers who brought their wisdom to bear in this debate. I say to the Government that their commendable concern for financial prudence ought to guide them in this respect: there is no doubt that couples and courts will be spared unnecessary expense if they go ahead and legislate.
I will pick up a number of points, and I hope noble Lords will forgive me if I do not address all of them, bearing in mind the time. I was moved to hear the right reverend Prelate talk about marriage, but it is not its financial elements and prenups that have degraded—as he might say—marriage to the level at which he and others have expressed concern. Marriage has been emptied of all its former aspirations by changes in the law. The recent change in divorce law, while welcomed by many, means that one can get a divorce without presenting any reasons and relatively quickly. That sort of change must do more to affect a couple’s entry or not into marriage than anything about the finances that may face them when that marriage comes to an end.
I wish, like the right reverend Prelate and others do, that divorce was not so common, but it is so we have to be realistic. The burden of many impoverished divorcees falls on the state anyway. No amount of contracts or provision for settling financial matters in the court takes us away from the fact that many couples have few assets and that their divorce means two sets of housing rather than one, an increased reliance on state benefits and that whatever is paid as maintenance is clawed back in universal credit. The presence or not of prenups will do little to affect that financial element.
I absolutely agree with all noble Lords who have expressed concern for children. Children cannot and should not be part of prenups or post-nups, because those are agreements between two adults. I do not think we have shown enough concern for children. I have read many judgments concerning wealthy couples, running to many dozens of pages, and on the last half-page is a throwaway comment about so much per month or week for the children and their school fees. That is it. There is no concern about how the huge amounts expended on legal fees detract from the children or general concern about how many fathers—it is usually fathers—are allowed to walk away from their responsibilities to their children without any recourse and without state child maintenance legislation having much effect at all. It is high time we took more concern for children’s financial situation in divorce.
I do not think that we should worry too much about the cost of making a prenup, as the noble Baroness, Lady Featherstone, spelled out, because those costs are but a pinprick compared to what people have to spend when they enter into an acrimonious divorce which needs to go to court. Nor should we be concerned about this convoluted argument that the Law Commission put forward that, if the overall law were to change, one would have to go back and alter the prenup law. After all, the law relating to money and divorce keeps on changing. Every time there is a Supreme Court judgment or a Court of Appeal judgment, things change profoundly and might require couples to revisit their prenup, so I do not think that is a firm argument. I urge the Government once again to go ahead and enact prenups because that will save money all round and it is a discrete issue, as most people have said. In fact, virtually everyone here this evening has said that prenups should be enacted statutorily.
As for cohabitation, if one changes the law relating to cohabiting couples now without reforming the law relating to financial provision, then cohabiting couples going to court will find themselves caught up in the same network of inefficient, uncertain financial provision as existing married couples do. There is no reason to delay statutory enactment of prenups law. The Minister—whichever Minister—will find in the Ministry of Justice files and files gathering dust. I have dealt with seven different Ministers over this issue over several decades and somewhere there is foot-dragging which is no longer justified. The Government want to save money, to help couples and to support children. Now is the time to do that, so I end by urging the Minister to go back to the ministry and tell them to get on with it.