My Lords, I hope that I carry the whole House with me when I say that I think that the law should be, above all, four things. First, it should be clear—the citizen has an obligation to observe it and therefore has a right to understand it. Secondly, it should be permissive—we live in a free society and are proud of that, and a free society is defined by the fact that the state intervenes to restrict the freedom of the citizen only to the extent required to defend and protect the freedom of other citizens. If something is not allowed which, if it were allowed, would not undermine the freedom of other persons, that is an anomaly and should be addressed. Thirdly, the law should be protective of the vulnerable, of the weak and of the less sophisticated against the more sophisticated. Finally, the law should be just and fair. It should reflect the principles of justice and make the proper balance between the protective and the permissive.
In my view, the noble Baroness’s Bill would advance the law in all those four very important respects. First, so far as clarity is concerned and as the noble Baroness has already explained, there is an unanswerable case that jurisprudence in family law has run far away from the Matrimonial Causes Acts. It is impossible to know where one stands and what precedent one might be guided by in trying to anticipate future judgments. That is a very unsatisfactory state of affairs. It is exactly the same with prenuptial agreements. Sometimes they are enforced by the courts; sometimes they are not—it is completely unclear what the law is, and that is very unsatisfactory. When you have a situation like
that, it is absolutely the duty of Parliament to do something about it. I congratulate the noble Baroness on having decided to do that with this Bill.
Secondly, in the area of fairness, the Bill introduces of the notion of matrimonial property, a concept drawn from Scotland, as the noble and learned Lord, Lord Mackay, has reminded us, and drawn by Scotland from the Roman law tradition which it has. A similar principle exists in the Roman law jurisdictions on the continent, where one can choose on marriage a regime either of séparation des biens or of communauté des biens. If one chooses the séparation des biens, one keeps separate the property that one brings to the marriage from other sources. The noble Baroness’s Bill would introduce into English law the notion of matrimonial property that would be subject to division on divorce and other matrimonial property that would be protected, such as inheritances and—according to the text of the draft Bill before us—gifts. That is definitely an enhancement of justice.
Then there is the contribution that the Bill would make to making the law more permissive. That is achieved through the provisions for prenuptial agreements. In a sense, if you have the rest of the Bill—the matrimonial property et cetera concept—then you have less need for prenuptial agreements, but on the permissive principle it is a good idea to make it absolutely clear that, if people want to enter into these contracts, they should be able to do so. Why? It is simply because, if two citizens wish to have a contract about anything, they should have an assumed right to make that contract—with the normal common law protections about disclosure of material facts, no undue influence and so forth. The burden is on those who wish to prevent two mentally capable adults from entering into such a contract. We have contracts in this country that are enforceable in law for all kinds of things: employment contracts, sale and purchase contracts, leasing contracts, licensing contracts, exclusivity contracts, partnership contracts and so on. Only gambling contracts are not enforceable under the law in this country. It would be an extraordinary state of affairs to put prenuptial contracts—with all the protections required and that are in the Bill before us with one small exception that I shall come to—on the same footing as gambling contracts.
I should not so much declare an interest as my own record on this matter. Many years ago in the other place, I introduced a Bill to provide legal standing and protection for prenuptial agreements, giving legal force to them. That got to an unopposed Second Reading but was never taken further for reasons of time. I have previous on this particular subject.
It seems to me that prenuptial agreements not only meet the criteria that the law should be permissive wherever possible but also advance the fairness of the law. People have been deeply offended by some of the gold-digging—that is the word one must use—that has had a lot of publicity recently. The McCartney case was famous. There was a case in point recently when one lady might have been involved in successful gold-digging on two separate occasions in the course of a relatively small number of years. That offends the public’s sense of justice. Both the noble Baroness’s provisions on the matrimonial property concept and
prenuptial agreements would tend to address that issue and make the law more obviously fair and just. That is a very desirable achievement.
On the impact on people’s willingness to get married, it seems to me that in practice the opportunity of having prenuptial agreements for those who might want to take advantage of them would, logically, encourage more people to get married. Some people certainly feel inhibited without them. In my own anecdotal experience, I can think of people who have been inhibited from formalising their relationship because they wanted to protect family assets of one kind or another that they already had. The Bill would enable them to engage in a marriage with no such inhibitions or fears. That is a thoroughly desirable thing.
I make just one perhaps niggling comment or suggestion, but it is important. Full disclosure should include not merely assets as provided for in the Bill but also liabilities. A false picture would emerge of the net worth of the two parties if the liabilities were not disclosed. Parties to a potential prenuptial agreement might think, if only the assets were fully disclosed, that they both had assets of a similar order of magnitude when in fact one had massive liabilities and the other had none. There might be enormous distortion in showing such a balance, so it would be quite false not to bring to the attention of the two parties a true and fair picture at the outset of the negotiations over that particular contract.
I hope that the Bill makes progress; I think that it is urgent that it does so. I hope that it becomes a part of the law of this country as soon as possible and that the noble Baroness, whom I congratulate again on this initiative, will take on board my one small suggestion.
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