She suggests that the current system in England and Wales for financial provision on divorce is effectively encouraging young women to "Never mind about A-Levels, or a degree or taking the Bar course - come out and find a footballer". She suggests that the decisions coming from the English courts on financial provision on divorce set a "bad example" to young women, making them think that "once they are married [they] need never go out to work, [that they] are automatically entitled to everything [they] might need even if that marriage breaks down and it's [their] fault." Whilst I do not agree that the handful of high profile divorce cases which prompted the Baroness' comments on gender stereotype can define the motivation of a generation to achieve on their own merits, it is clear that despite Baroness Deech's headline stopping comments, her own motivation is more measured.
Baroness Deech introduced a private member's bill, The Divorce (Financial Provision) Bill, to the House of Lords in early 2014. The bill is currently at committee stage in the House of Lords. If the bill becomes statute it would make Pre and Post Nuptial Agreement's in England and Wales legally binding which would allow parties to a marriage or a civil partnership to ring fence assets owned by them prior to the marriage and ensure that such assets are protected on divorce or dissolution.
Financial provision in England and Wales is quite different from that in Scotland as is our approach to Pre and Post Nuptial Agreements and it seems that the private member's bill seeks to reform the law south of the border to what is a much more Scottish approach. In Scotland Pre and Post Nuptial Agreement's are generally accepted to be legally binding and therefore enforceable by the court. The primary challenge in Scotland to such agreements is where the terms of the agreement were not "fair and reasonable" at the time it was entered into. In Scotland is it not unusual to enter into such an agreement before setting up home, getting married or entering into a civil partnership. Such agreements can avoid costly litigation if the relationship does ultimately break down but it is important to ensure that appropriate legal advice is taken to minimise the opportunity for the agreement to be struck at in the future. In situations where there has been a long period of cohabitation pre marriage there is a further layer of complexity in considering the "fair and reasonable" issue. An Agreement may place a party in a poorer financial position as a new spouse than as a long term cohabitant and so consideration must always be given to the range of claims a party may have not only on divorce but also at the point the agreement is entered into. The situation in England and Wales is much more uncertain and Baroness Deech appears to consider that addressing that uncertainty would be of benefit to couples south of the border.
It would certainly afford them the opportunities that couples in Scotland have to protect their assets and regulate their obligations on divorce or dissolution.