My Lords, Amendments 23 to 25 are all about what we specialists call periodical payments, which, I ought to explain to the House, are ongoing maintenance payments that many people are familiar with, whereby usually a husband, although not always, is ordered to pay his ex-wife a monthly or annual sum, year in, year out. A Member of this House has told me that he is still paying maintenance to his ex-wife after 30 years and many intervening marriages.
In fact, only about 12,000 such orders are made every year, although, as I have said more than once, there are more than 100,000 divorces every year. Not many of these orders are made, which must mean that people are reaching their own agreement: they are settling the matter once and for all by a lump sum, or, very likely, there simply is not any money to go around. As I have said before, the law that I am trying to reform affects largely lower and middle-income people. Of course, as we know, in the lower income bracket, people may well be living on benefits with a great deal of state subsidy; there simply is no money to go around and no order is made.
Noble Lords will recall the great difficulty there has been over the decades in trying to extract from fathers, who have no reason to object, ongoing maintenance for their children after a divorce. It has been like trying to get blood out of a stone, and so it remains. I suspect that in many of these divorces no order is made because one or both of the couple are living on benefits.
In many ways, the current law is regressive. Reverting to an analogy I have used before, were I or any other noble Baroness in this House so fortunate as to marry a footballer for a brief period, we could expect at the end of the marriage, which undoubtedly would come
about, to be kept in that particular style for ever and ever—it really is not that amusing; that is the law at the moment—whereas if a noble Baroness in her youth was so altruistic as to marry a vicar she would get absolutely nothing, or next to nothing, on divorce. I have said for many years—and I have been involved in educating women all my career—that the message that goes out is, “Find that footballer and sit back”.
The Law Commission has said that periodical payments—maintenance—should be a transition. In an era when women, mothers included, are expected by the Government not to claim benefits once their child is six, it is very hard to argue that once a woman has children she should always be kept after the end of the marriage, let alone if she has no children or those children have grown up. I am sure that noble Lords know from their acquaintances the inequity and rather arbitrary nature of what goes on.
The Law Commission has said that maintenance should be a period of transition to full independence. We know that this may be hard on the older woman but it may very well be that there are lump sums and a division of assets. Moreover, I have shown in these amendments that I am listening to the concerns of the Government. At Second Reading they said that this may be hard. These amendments therefore say that maintenance should last in the first instance for five years—which represents the average period between the end of one marriage and the beginning of another—and that they may continue where there is evidence of “serious financial hardship”.
To change the law in this way would be only to bring us into line with what goes on, as I have said before, in North America, the rest of Europe, Scandinavia, Australia and New Zealand. It is very hard to argue, when our divorce law, rightly or wrongly, is no longer based on fault but on irretrievable breakdown—“This marriage has come to an end; it is nobody’s fault"—that a man should continue to keep his ex-wife in the style to which she became accustomed for ever and ever until the end of their joint lives. It does not actually happen—as I said, there are only 12,000 cases.
I will quote briefly from some of the blogs. Whenever I mention this in public, the public come back and say things such as,
“desperately needed reform of financial proceedings on divorce … The financial interests vested in the current lawlessness are colossal … all that comes out of court is injustice, direct/indirect discrimination … It is fundamentally unfair and an affront to the rule of law that the outcome of cases should vary randomly to such a degree”.
Even the Law Commission reported that its consultees said that operating financial provision in divorce for a judge is like a bus driver being given a bus and told to drive it but not being told where that bus is to end up.
What is the objective of maintenance at the end of divorce? The House has not really got to grips with this ever since the change in the divorce law in 1969. Actually, periodical payments are withering on the vine. It is time for us to give a steer. I absolutely understand that the Government have concerns and think that people will end up on benefits, but the people who are likely to do so are living on benefits already.
I have provided in Amendment 24 that the period may be extended. Again, I quote from some of the consultees:
“Many people going through divorce have grown sick and tired of hearing that the legal profession has spent the decades since the Matrimonial Causes Act was enacted failing to develop a coherent set of straightforward principles to govern division of income and assets on divorce”.
Another says:
“ The Scottish system”—
which I am copying here—
“is by no means perfect, but it does at least provide a framework for dealing with financial provision. Legislation will always be open to interpretation by lawyers … The public should however be able to rely on and understand a basic set of provisions regulating the division of matrimonial property on separation and divorce”.
Another said:
“Nobody knows where they stand. The judge you get on the day can do virtually anything based on a whim”.
That is how it seems—a point made strongly by the noble Baroness, Lady Shackleton, at Second Reading.
Moreover, one must remember that many women now, especially younger women, are earning more than their husbands. Men somehow seem to take it on the chin when they have to pay maintenance to their ex-wives, but there is nothing like the fury of an ex-wife who already feels that she has been betrayed by the man she married who is earning less than her when she realises that she is going to have to keep him for the rest of his life. I beg to move.
Noon