Do family courts discriminate against husbands, or wives?
Family Law is an extremely informative publication, billed as essential reading for family law professionals. As with all legal journals, some contributions are so esoteric they require more concentration and stamina than others, but I still persevere. An exception would be a detailed article I read many years ago, about the intricacies of Child Support before its reform. It was written by a mere barrister then, now Mr Justice Mostyn and frankly, I gave up trying to understand it part way through…
Reading the June 2012 edition of Family Law, however, left me with a wry smile. There are two articles, appearing almost back-to-back, by two different sets of lawyers who pose the same, perfectly valid question – but from differing perspectives.
The first duo asks: Do family courts discriminate against husbands? Their conclusion: “The authors consider that it is tempting to draw the conclusion that there is still a degree of gender discrimination within the court system.”
Unwittingly the second duo provides an answer too, in another article titled Till death or remarriage do our finances part? They ask if, in cases of post-divorce spousal maintenance, “there is the start of the pendulum away from the receiving party (still usually the wife) and back towards the paying party (still usually the husband)?”
I do not doubt that if asked, many of my readers would state without hesitation that the law is biased. I also suspect that some would say that it favours women, and others would argue as firmly that it favours men. In fact, does it favour either of them?
Arguing that husbands are discriminated against, the authors of the first article cite the case of K v L [2011] EWCA Civ 550 , which I have previously covered on the blog. This is the case where the wife inherited £57 million from her late grandfather in the form of shares, thirteen years before the parties married. The shares were always kept separately in the wife’s name and the family lived modestly. On divorce the husband received £5 million, which more than covered his stated needs. He appealed, contending that he was entitled to about £18 million given the length of the marriage and that he had only received 10 per cent of the assets. He argued he was entitled to share in all the assets. His appeal was dismissed in a beautifully succinct judgment of Lord Justice Wilson (now Lord Wilson) in the Court of Appeal.
The authors then go on to discuss the case of S v AG [2011] EWHC 2637 (Fam), which I have also covered here. This concerns a lottery win, where the husband’s needs were just met and he too was denied any share in the wife’s win, which had occurred post-separation.
They then go on to compare and contrast with the earlier case of Miller v Miller [2006] UKHL 24, where the marriage was less than three years old but the wife was awarded a lump sum of £5 million out of a marital acquest of £12-17 million. (Acquest is the wealth acquired during the marriage.) The husband’s total wealth amounted to more than £30 million.
I respectfully disagree with the authors’ tentative conclusion that “there is still a degree of gender discrimination within the court system.” Since the Miller judgment in 2006, there have been far more applications of the sharing principle in White v White [2000] UKHL 54, and far more cases involving ring fencing of non-matrimonial assets such as inherited or pre-acquired assets.
The Lords’ judgment in White v White in 2000 was when the concept of equal sharing, of surplus assets after needs had been taken into account, became the accepted starting point. For many it became the finishing point when the assets had been accrued during the marriage, for financial settlements between a wealthy divorcing couple, irrespective of one party’s role as the bread winner and the other party’s role as the homemaker. Nevertheless in that same judgement it was made clear that where needs could be met without recourse to non-matrimonial assets, they would likely remain in the hands of the recipient. So the ability of the court to ring-fence non matrimonial assets was also made clear.
Miller v Miller was a case in which the principles of sharing the marital acquest made the news, but equal sharing is nothing new in jurisdictions where community of assets is the law. It was news in our jurisdiction where matrimonial assets were being equally shared, because a large sum of money was earned during the marriage, albeit a very short marriage. So on the face of it, the wife was entitled to an equal share in the marital acquest because it had been earned during the marriage. Nevertheless the outcome of the case, which was finally heard by the House of Lords in 2006, did not divide the marital acquest equally, and still ring-fenced the assets brought into the marriage. It was the amount itself (£5 million to the thirty-something wife) which was staggering, rather than the principle. To argue that there was gender bias is, I think, to ignore the basis on which the division actually occurred and was approved by the House of Lords.
Personally, I objected to the outcome in Miller v Miller on more straightforward grounds. I think the wife’s needs could have been met for less and, once her needs were met, I would have found in favour of the husband, accepting his arguments for good reasons to depart from equality.
Six years later the jurisprudence now seems clearer still. Non-matrimonial assets that are ring-fenced will be preserved and protected, provided needs can otherwise be met. It is unlikely there will be sharing of such non-matrimonial assets, and this has nothing to do with the favouring of a wife over the husband. Consider the case of AR v AR [2011] EWHC 2717 where, out of £25 million, the wife’s needs were assessed at circa £4 million and the rest remained with the husband. A similar result occurred in the case of Grubb v Grubb [2009] EWCA Civ 976. If minded to do so, you could strongly argue the husbands benefitted rather than the wives.
But I don’t think this is gender discrimination at all. Rather, it is a clear determination on the part of the court to allow a non-matrimonial asset to remain with the party to whom it originally belonged.
Compare and contrast, however, with the second article in Family Law. Here, the new case of L v L [2011] EWHC 2207 is considered. This article focuses upon the financial subject that seems to excite readers of my blog most of all: namely, continuing maintenance and when and if there should ever be a cut-off point post-divorce for wives who receive a maintenance order without a term being imposed at the start.
The authors of the article look at the law and at this particular case, in which the amount of maintenance was reduced on appeal, and a non-extendable time bar imposed. They ask if some sort of turning point has been reached in favour of the paying party (usually the husband). These authors, too, hark back to the Miller days, when the cases of the Arsenal footballer Ray Parlour and the accountant Ken Mcfarlane were also heard. In those cases, no capital clean breaks were possible and because of the facts, no term bars were imposed – although the Court of Appeal did state that they would expect Mrs Parlour to become self-sufficient within a certain time frame. So even if there was gender discrimination (which I don’t think there was), is there gender discrimination now against the payee?
Again, I don’t think so.
I believe each case comes down to the individual judge’s interpretation of the partie’s needs, and nothing more. In L v L the wife was a successful business woman in her own right and had other resources. In fact the judge in the case, Mrs Justice Eleanor King, expressly stated it was not necessary for her to consider the current state of the law as to extendable terms. Instead, presumably on the case’s facts, she stated that “it cries out for a term order.”
I don’t think that the law discriminates between husbands and wives in this way. Instead I believe that judges interpret “need” in different ways, at different times in different cases. Argument currently abounds, however, as to how to calculate needs and to what extent sharing in all the assets surplus to need, particularly non matrimonial assets, should thereafter occur.
In 2011, Baroness Hale gave the Audrey Ducroux Lecture to members of the International Academy of Matrimonial Lawyers, of which I am a member. Exploring this vexed subject of “the principle of equality”, she concluded:
“I think that I would rather allow couples who wanted to do so to contract out of the sharing principle than engage in a wholesale review of the principles of ancillary relief which might well result in the abandonment of that sharing principle even for those who are happy with it.”
To my mind, observations in one or two cases do not amount to a valid argument for “gender discrimination”. What can be argued, however, is that the law requires simplification and how that should be achieved. This subject is currently occupying the brains at the Law Commission and I am eagerly awaiting their proposals.
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12 Comments
Richard on July 4, 2012 at 8:48 pm
“still a degree of gender discrimination in the courts”? When do men ever get custody of children? A friend of mine was advised not to even drag it through court because he had no chance of custody. His concern was only for the children not who got what financially. Sad state of affairs
steve on July 5, 2012 at 5:28 am
Would not life be easier if every case was made a “Clean break” with 50% of the assets shared at the time???
Have we not over complicated matters with maintenance etc etc and resultant arguments which serve only to escalate costs and often take between 10 o 20% of the total assets anyway.
Lets keep it simple and share equally, the legal costs will be lower and the courts not clogged with couples arguing over “made up” needs.
JamesB on July 5, 2012 at 1:11 pm
I agree with steve, that would be better.
Mal on July 6, 2012 at 9:47 am
Having been through a divorce and the family courts, I found an ethos of ‘short cutting’ and ‘simplifying’ the financial aspect is somewhat discriminatory to the partner who has accrued any major assests, whilst in the relationship/marriage. There appears to be a lack of a balanced approach, and a lack of interest, in attempting to take all things in to comsideration.
I found the family courts ‘weak’ and ‘disinterested’ in enforcing court orders regarding contact issues, which in my case lead to the respondent defying the court without being answerable for her actions, to the detriment of the children.
JamesB on July 6, 2012 at 11:20 am
The court would not enforce my contact order either, instead when it got to court the judge just asked my ex what she thought she could do instead, which was what I ended-up with, one overnight every other week, very bad form that on behalf of the courts, and yes, sexist. I alos believe that such bad behaviour by the courts in such cases is the norm rather than the exception. With re to the finances, I agree with steve as I have already said.
JamesB on July 6, 2012 at 11:21 am
typo, ‘alos’ means ‘also’ above.
JamesB on July 6, 2012 at 11:27 am
To be honest, I think it’s obvious that :
1. The MCA, ancillary relief (financial) implementation of law in courts is biased against husbands.
2. The children act implementation is biased against husbands.
Any bloke who goes to a contested hearing in these (E&W Family law courts) places will tell you that.
Thus, my advise is to avoid them like the plague, and unfortunately, yes, that is what I am saying to my 3 children. The law and judges and csa are an absolute disgrace in these areas. I could go into the details and why they are evil, but to summarise, where there is not enough money to go around or no agreement on contact, the bloke gets what the woman offers and / or gets shafted.
JamesB on July 6, 2012 at 11:27 am
Sorry, had to be said.
JamesB on July 6, 2012 at 1:26 pm
I missed Cafcass by accident from the list of offenders. ‘The law and judges and cafcass and csa are an absolute disgrace in these areas.’
Observer on July 6, 2012 at 8:54 pm
There is gender discrimination on both sides of course.
Women are treated like domestic parasites that are too bone-headed to work, and are forgiven the most outrageous crimes (including false allegations, domestic violence, etc.) on the basis that they are emotional animals rather than rational human beings.
Men are all assumed to be brutes who are incapable of childcare, and so given something called “contact” twice a month, denied any say in the matter of the lives of their children, treated like perfect criminals, and obliged to pay for the privilege of all that.
Let’s face it. Gender discrimination and stereotyping is a very profitable business, and it’s very convenient if you can blame everything on the parents as a way of excusing the base economic motives and incompetence of the judicial system.
JamesB on July 7, 2012 at 9:32 am
Its sad how people like to stereotype. It used to be black people, jews, asians, now it’s Poles and non redisent fathers, and it completely disgusts me how people try and look down on others. I have got this bad attitude from former friends and it stinks.
Bruno D'Itri on July 21, 2012 at 9:01 am
It is overwhelmingly fathers who are effectively treated as second-class parents by our family justice system. Plainly, the judiciary is not permitted to be directly discriminatory against men. However, such discrimination against men occurs indirectly, as a direct consequence of the Single Parent-Primary Carer paradigm favoured by the judiciary.
One way to tackle this ‘institutional gender discrimination’ is to introduce the Principle of Shared parenting. This is exactly what the Government is planning to do, despite opposition by Mr Beith http://www.guardian.co.uk/law/2012/jul/18/family-law-confusion-lib-dem
Mr Beith’s position on shared parenting is, perhaps, best viewed in its full historical and cultural context.
In the 18th and 19th centuries, British family laws were such that, if the father so wished it, separated mothers were likely to lose all contact with their children.
Development of the law occurred very slowly indeed. Some change came with the Child Custody Act of 1839 and the Matrimonial Causes Act of 1857, but it was not until 1925 that the welfare of the child became paramount. At every stage, there were numerous ‘Mr Beiths’ who resisted any development in family law.
Even today, in certain Middle Eastern cultures, separated mothers are treated despicably and are often denied access to their children. Here, too, there are ‘Mr Beiths’ resisting change.
The injustices experienced by British women in the past are, sadly, being visited upon British fathers in 21st Century Britain.
A father can be fully involved in the day-to-day care of his children, and yet, following separation, he can find himself completely excluded from their lives. How can this possibly occur, when the Children Act of 1989 so clearly dictates that the paramount interests of the children should be served by the courts?
Following separation, the family courts automatically seek to anoint one parent with the status of ‘Primary Carer’. This will usually be the parent who, prior to separation, undertook 51% or more of childcare duties. As we know, in most cases, this is the mother. The law then bestows upon that Primary Carer a grossly disproportional degree of power over the children, vis-à-vis the Non-Primary Carer (the father).
In most cases, separated parents are able to focus upon the well-being of their children and can come to a mutually agreed childcare arrangement. However, in many acrimonious cases, the Primary Carer can ‘use the children as weapons’ – to coin a phrase adopted by Sir Nicholas Wall, the President of the Family Division. The children are used as a means of punishing a former partner by restricting contact. Such abhorrent behaviour currently goes unpunished by the family courts, their rationale being that to punish the children’s Primary Carer is tantamount to punishing the children themselves. With no effective deterrent in place, such behaviour is set to continue. As we know, the Government is currently looking at ways of introducing some deterrence.
Single Parent-Primary Carer or Shared Parenting? There now exists a plethora of contemporary scientific evidence which demonstrates, beyond all reasonable doubt, the significant emotional, developmental and educational benefits for children of their being permitted to remain in a close and meaningful relationship with both their parents, post separation/divorce. Indeed, fifteen such scientific reports were presented to Sir Nicholas Wall in the case of Re D (Children) [2010] EWCA Civ 50. Sir Nicholas reserved his judgment for three weeks in order to read this very extensive evidence. He concluded that family laws potentially relegated the harm done to children by irrevocably damaging their meaningful relationship with the Non-Primary Carer.
Mr Cameron – to whose Government the scientific evidence was also presented – understands the need for family law to develop in line with contemporary scientific evidence and the realities of 21st Century parenting. We need only to look at last Summer’s riots to see where fatherlessness can lead.
I am one such Non-Primary Carer. Before separation, I was actively involved in the lives of my two sons. Post separation, I was excluded. Despite numerous court appearances, including three at the Court of Appeal, and despite being found by the courts to be an entirely loving, caring and responsible father, I have lost meaningful contact with my sons. I fought for years in a legal system which simply could not understand and/or give due weight to the importance of a father (or ‘Non-Primary Carer’) in the optimal development of a child.
As I see it, the problem lies in the fact that the judiciary has opted to interpret the Paramountcy Principle of the Children Act of 1989 using the ‘Single Parent-Primary Carer’ paradigm. Relocation law, in the form of Payne v Payne (2001), is a prime example: it rides rough-shod over any possibility of shared parenting by placing thousands of miles and any number of oceans between children and their Non-Primary Carer.
What Mr Cameron seeks to do is to rectify this error by making it very explicit indeed to the judiciary that the full and meaningful involvement of a good and loving father is vitally important in serving the paramount interests of a child. In reality, there is no substantial conflict between the Paramountcy Principle and the Principle of a Presumption of Shared Parenting.
Regards
Bruno D’Itri