Is the family justice system biased against women?

family law

This blog is full to overflowing with arguments about how the family justice system is biased against men, i.e. husbands and, in particular, fathers. But have those putting forward those arguments got it all wrong? Is the system actually biased against women?

Whilst they may not be quite so vociferous as men (more of which in a moment), one still does not have to look very far to come across wives and mothers complaining of their treatment at the hands of the family justice system.

For example, there are many wives who believe that they are unfairly treated in financial settlements following divorce. How can this be, in the country with the system reputed to be the most generous towards wives? Well, I’ve seen various arguments, but perhaps the most persuasive relates to the failure of the courts to take into account, or to sufficiently take into account, the financial disadvantage that many wives suffer compared to husbands following divorce. Various studies have shown that wives can be worse off than husbands for many years.

Back in 2008 a study by the Institute for Social and Economic Research (ISER) at the University of Essex found that divorce makes men, particularly fathers, significantly richer, with their available income increasing by around a third. On the other hand, women suffer severe financial penalties. Regardless of whether she has children, the average woman’s income was found to fall by more than a fifth, and remain low for many years.

The ISER revisited the subject in 2014. One of the authors of this new study found that:

“Women continue to see living standards fall by more after separation than men, especially when children are involved, but even for couples with no children. Mothers and children from high-income families see especially large drops in living standards, because the loss of the man’s earnings is in no way compensated for by higher income from alimony, child maintenance, benefits and tax credits, and having fewer mouths to feed.”

Which brings me on to another very common complaint by mothers: the utter inefficiency of the child support system in the collection of child support maintenance from fathers who refuse to pay. As we all know, this failure of the system can leave mothers (and of course the children) in poverty for years after the relationship breakdown.

And there have been other complaints from wives. In 2010 the Court of Appeal did away with the ‘Hildebrand Rules’, which had previously allowed spouses, usually wives, to use documentary evidence belonging to their husbands that they had obtained, provided that they had not used force to get this. The Court of Appeal said that this kind of ‘self-help’ was not allowed, as it breached the privacy of husbands. The ruling was described as a “cheat’s charter”, making it far easier for husbands to get away with hiding assets from the court.

I could go on, but I think the point is made: it can be argued that the family justice system (in its broadest sense) is biased against wives and mothers. The reason why we don’t hear the argument as often as the argument that it is biased against men could, as I indicated above, be put down to the fact that women simply don’t shout as loudly as men. Quite why that might be, I will leave the reader to speculate.

Now I don’t believe that the family justice system is actually biased either way, in favour of men or women, although mistakes are made, on both sides, that can make it seem that that way. Both men and women can also be the victims of the inefficiencies of the system, such as the poor response to mothers disobeying contact orders, and the failures of the child support system to chase recalcitrant fathers. These things do not amount to bias.

OK, so if I don’t believe that the system is biased against women what, then, is the purpose of this post? It is simply to demonstrate that it is quite easy to construct an argument either way in the debate as to whether the family justice system is biased. The fact that an argument is constructed, however, is not of course proof of its veracity, any more than the fact that many people believe it to be true. Many people can be equally wrong. I guess what I’m saying is that minds need to be opened, not fixed in some self-made cage. Only that way will we have a proper debate about how we might improve the family justice system.

Oh, and before I go please do NOT leap to your keyboards to comment about how the system is not biased against women. As I have just explained, the point of this post is that is not.

Photo by Till Westermayer via Flickr

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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Andrew - August 21, 2017 at 7:40pm

“the utter inefficiency of the child support system in the collection of child support maintenance from fathers who refuse to pay”
For this read
“the utter inefficiency of the court system in the collection of judgment debt from debtors who refuse to pay”.
Many non-paying NRPs have many other debts; judgments which go unpaid or debts which are not reduced to judgment because creditors know there is no point. But if debt collection improved the PWCs would be competing for the same assets with the other creditors.
Don’t imagine there is an easy solution to that!

Father of 4 - August 21, 2017 at 8:16pm

You have put forward an ‘argument’ that could be used to suggest bias against women. You then dismiss it whilst also dismissing the possibility of there being a bias against men. There is so much more to this particular issue than you mention and if you look at things deeply enough I think you might find that, statistically at the very least, men are disadvantaged in the family court. Why is it that applicants are predominantly men? Why is it that so many men are denied direct contact with their children? The numbers simply don’t add up. If there are truly that many men who are unfit to have direct contact with their children, how can you justify such a high number of women gaining residency? The numbers don’t add up, particularly when you take account of child abuse statistics. Children are more likely to be abused by their mother than their father but residency and contact orders certainly don’t reflect that. As I said, there is much more to this issue. You have made your view clear but your view is only one very small part of what would seem to be a very large and complex picture. Personally, I have seen a bias first hand, even down to outright discrimination by court appointed officers, and it would seem that my own experience is not unusual.

Rumble - August 21, 2017 at 8:20pm

Interesting post. Firstly we do shout louder than men. However, you can shout to the cows come home, it will not change the fact that Nyas, Caffcass, cms
Are just incapable of serving their purpose . Cms have no jurisdiction and is a shambles, and tribunal might as well be there for when the kids have turned to adults ! Shockingly painfully slow. Caffcass, nyas, guardians assist the court and just lie like Pinocchio and the court believes . 12j changed ! Somebody needs to tell the guardians . There most definitely needs a complaint with evidence procedure . Let’s cross examine them at final hearing my which time the court has absorbed report after report of twisted, lying rubbish . The whole system is a shambles . Not biased just a complete erratic mess

Andy - August 22, 2017 at 7:55am

Last week the same subject, Is the Family courts Bias against men.This is where the Author put the record straight so to speak..apparently to support his comments on the subject and of course to make comment on all the responses that were written or targeted at the Author….

Is such a view point on the reverse side of this subject necessary..

The answer to this is, as the prior comments made in relation to the same subject on Fathers is No…
With such groups as Ginger bread, Mums net, plus all the other groups in relation to Fathers don’t matter then why posts it..
We all know the answer to this one…

Andy - August 22, 2017 at 7:56am

Old reports or statistics that are not fit for reading..

Paul - August 22, 2017 at 11:57am

Those arguements were not evidence of Bias. Have nothing to do with bias. Women are poorer after devorce is not evidence of bias. Inefficiency of the court to recover cms money has nothing to do with bias. Interpretation is such an important part of law.
I wonder what is John Bolches interpretation of the terms Bias and Predudice ?
What is your working understanding of these terms ?

D - August 22, 2017 at 12:31pm

Yeap we could get into the who has it worse realm, that gets interesting for sure…
“the fact that women simply don’t shout as loudly as men”. That’s (generally) not the problem. Women have an effective voice in feminism; the equivalent male voice is deeply frowned upon, which is a problem for everyone.. because a spectrum of voices is only represented by an extreme loud, minority. The spectrum of feminist/female voice is diverse from very moderate to extreme. Most men won’t speak out because of the social response of ‘shut-up, you’re male, you have privilege, why are you complaining’ etc.
So we’re only left with part of the spectrum of voices. Which doesn’t help anyone.

The disparity between men and woman in terms of income is a big social problem, we need to understand and sort out. Only when we get to the point where it’s just as likely the man will take the career break as the woman do we have any chance of sorting this complete screw-up out.

And typically, we view everything from a financial perspective, rather than considering other aspects of costs in relationship breakup and indeed contribution before breakup.
Just like diesel cars, government/law knows best and has previously given us a family model, social conventions to sign up, follow and be legislated by. Some of these ideas just don’t work properly.. as we can see by the state of society/divorce/family dis-function.
The not leaping to keyboards bit is funny… I’m sure that’s exactly the aim of a lot of the posts 😀 !

Paul - August 22, 2017 at 1:23pm

What is BIAS?

Inclination; bent; prepossession: a preconceived opinion; a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. Maddox v. State, 32 Ga. 5S7, 79 Am. Dec. 307; Pierson v. State, 18 Tex. App. 55S; Hinkle v. State, 94 Ga. 595, 21 S. E. 601. This term is not synonymous with “prejudice.” By the use of this word in a statute declaring disqualification of jurors, the legislature intended to describe another and somewhat different ground of disqualification. A man cannot be prejudiced against another without being biased against him ; but he may be biased without being prejudiced. Bias is “a particular influential power, which sways the judgment; the inclination of the mind towards a particular object.” It is not to be supposed that the legislature expected to secure in the juror a state of mind absolutely free from all inclination to one side or the other. The statute means that, although a juror has not formed a judgment for or against the prisoner, before the evidence is heard on the trial, yet, if he is under such an influence as so sways his mind to the one side or the other as to prevent his deciding the cause according to the evidence, he is incompetent. Willis v. State, 12 Ga. 444. Actual bias consists in the existence of a state of mind on the part of the juror which satisfies the court, in the exercise of a sound discretion, that the juror cannot try the issues impartially and without prejudice to the substantial rights of the party challenging. State v. Chapman, 1 S. D. 414. 47 N. W. 411, 10 L. R. A. 432; People v. McQuade, 110 N. Y. 284. 18 N. E. 150, 1 L. R. A. 273; People v. Wells, 100 Cal. 227, 34 Pac. 718.

This certainly covers all the family court cases ive been involved in.

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