I was mildly amused by two contrasting news stories that appeared in the national press over the weekend. One told us that a men-only divorce law firm was to open in London for fathers feeling let down by the family courts. The other story informed us that a group of women who feel that the divorce courts have left them short-changed have joined forces to help other in their position.
I don’t want to comment upon the specifics of the two stories, but they do raise the obvious question: are the family courts biased against men or women?
Now, one might say that the mere fact that both men and women feel that the courts are biased against them suggests that they are biased against neither, but I thought I would at least give some credence to each side by looking a little deeper.
The job of the family courts is of course to apply the law and the starting point must therefore be the law, as laid down by Parliament: is this biased? The answer is a simple and resounding “no”. There is nothing in our family law that discriminates against either men or women.
Looking closer, our divorce law does not discriminate between husband and wife: either party may commence the proceedings, and either party may be the respondent. The ground for divorce (irretrievable breakdown) says nothing about husband or wife, and nor do any of the five ways of proving irretrievable breakdown. As to disputes over arrangements for children, the law says nothing to favour mother or father – the welfare of the child is the court’s paramount concern. Similarly, the law relating to financial remedies following divorce does not favour either husband or wife.
Of course, the law must be interpreted by the courts. However, so far as this is concerned, the courts surely come out well. Whereas at one time, following the norms of society, there may have been some bias, for example in favour of mothers in children disputes and against wives in financial disputes, in recent times the courts have moved on. Now, for example, the courts are quite clear that in financial remedy cases the contribution of the homemaker, usually the wife, is equal to the contribution of the breadwinner, most often the husband.
And that is the point: the law reflects society. If there are biases in the law, that is because there are biases within society. In other words, it is not because the law is biased, it is because society is biased.
Happily, we now live in a much more equal society than previously, and therefore the law is much more equal than it once was.
Having said above that I will not comment upon the specifics of the two news stories, I will say a couple of things about the claim by the wives that the courts are allowing husbands to get away with not disclosing assets. Firstly, it is extremely difficult to get to the bottom of complex financial cases, especially when the time available to the courts is probably more limited than ever. Secondly, what about the cases (and there are some) where the wife is the one with most of the capital assets? Any complaint about non-disclosure must surely apply equally to them.
The argument about whether the family courts are biased against men or women will no doubt run and run, with neither side being able to show that they are right. What both sides do show, however, is that whatever a family court judge decides, the judge can’t win.