For the second day in a row I find myself writing a critical post here about an article that appeared in a national newspaper. Still, I suppose someone has to make sure that the great British public (or at least that part of it in England and Wales) is properly informed…
On Sunday a piece appeared in The Telegraph under the headline:
“Divorces are skewed by judges’ outdated chivalry, says female peer pushing for cap on payments”
The peer referred to in the headline is, of course, Baroness Deech. The piece discusses her Divorce (Financial Provision) Bill, which I spoke about here, in this post. In particular it discusses the provision in the Bill that the duration of spousal maintenance orders should be no more than five years, save in exceptional circumstances (the piece wrongly says that the Bill calls for a three year cap to be placed on most maintenance payments). The piece also goes on to discuss the recent case in which a husband was required to continue paying maintenance to his ex-wife fifteen years after they divorced, a case upon which Marilyn Stowe commented.
The headline is explained in the first paragraph of the piece:
“Judges are labouring under antiquated notions of chivalry in awarding women maintenance payments which extend years into the future, despite the fact that many divorcees go on to earn good salaries on their own, says a leading female peer.”
The Baroness’s own words are quoted as:
“Our judges are being very old fashioned I’m afraid. They are over-chivalrous and the way they were in the 19th century.”
So, the argument is essentially that judges are biased in favour of wives, although the Baroness does not use that word.
It’s an interesting argument, but one with which I suspect most judges would take issue. Whilst it is no doubt true that the vast majority of spousal maintenance orders are made in favour of wives, I suspect that most of the judges who make those orders would argue that that just reflects how society is. Even in these more enlightened times, it is far more likely that a wife will be dependent upon a husband than the other way around, and the orders are made to deal with the issue of that dependency.
There is also the fact that very many of our judges are women, as an eminent QC pointed out on Twitter. Are female judges ‘over-chivalrous’ too? I can’t really see that.
And the issue is surely blown out of proportion. Spousal maintenance orders are actually relatively rare, and orders that last (potentially, at least) for life are rarer still. Remember that since 1984 the courts have been specifically required to consider in all cases whether a clean break (i.e. a financial settlement without maintenance) is appropriate, and where they decide that there should be a maintenance order they must consider whether it would be appropriate to make the order only for as long as is necessary to enable the receiving party to gain financial independence.
With the greatest respect to the Baroness, she seems to be basing her assumptions on the few cases that are reported, which are inevitably big money cases, in which the husband has the ability to pay (to give the Baroness credit, she seems to accept this when she says that: “It’s an insult to every woman who works for a court to say that if you’ve bagged a rich man you should carry on getting that sort of money to fund a luxury lifestyle.”).
The vast majority of wives are not given a ‘meal ticket for life’. There is certainly no “assumption throughout the legal system that once a woman is married she is somehow disabled and incapable ever of managing on her own for the rest of her life”, as the Baroness claims. Most wives are expected to fend for themselves, although obviously there may be instances where this is not immediately possible, in particular where they are still looking after dependent children (the same of course can apply to husbands looking after dependent children).
The law relating to financial remedies on divorce, as set out in the Matrimonial Causes Act, is of course gender-neutral. It does not favour wives, or husbands for that matter. That judges who apply that law appear to favour wives is just a reflection of how society is arranged, not because of any favouritism or, dare I say it, bias.