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Do judges favour wives?
Family Law|February 14th 2017
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"Divorces are skewed by judges' outdated chivalry, says female peer pushing for cap on payments"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 here.
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.
Photo by amboo who? via Flickr under a Creative Commons licence.
Author: Stowe Family Law
enquiry@stowefamilylaw.co.uk
spinner says:
Unless you can present actual data that proves judges don't favour wives then you have no argument. I agree with Baroness Deetch and it was certainly true in my experience but even me saying that proves nothing as I don't have any data. Once the digitisation of court applications which is now started is completed there will be a massive data set for an AI to process that will be able to give a definitive answer to this question and it will also show up regional variations that we all know are there and then we can start to get a grip on our out of control legal system but hopefully Baroness Deatch's financial provision bill will be passed and that will remove a lot of the possibilities for bias and regional variation.
Blimey I can't believe that a Barroness has actually supported for a fair division and reduced maintenance of payments for a certain amount of time…
Better sit down and have a drink..pity this was not pushed forward in my case…
Spinner you are right…clarification on all subjects and of course judges are right as the Gold digger ex seem to bleed dry at will the ex father…
TG says:
Complete misrepresentation by humbug John Bolch when he suggests from his headline that Baroness Deech, truly a Noble Baroness, beyond many, is saying that Judges favour wives. Judges evidently favour the "post-divorce effort-shy". Perhaps John Bolch considers that to be wives?
The trouble is that some vanguard firms act only in high net worth cases – and they get paid ludicrous dishonesty-fees for delivering the meal-ticket for life which John Bolch appears to deny the existence of. These are firms which gave the handsome livelihood to barristers, then QCs while they were on their climb to the eminence of a Judiciary which is tarnished like no other division.
Whether male or female work-shy – Tennis and bridge with "ladies who lunch" – and an excess of holidays – sometimes with a new spouse freed of the alimony/maintenance considerations because the law looks for full and final settlements EVEN where a new funding-source subsequently takes on an effort-shy. It is sad that this filters through to all levels of wealth – a system manipulated by utterly contradictory caselaw lottery (of COURSE solicitors love the uncertainties that engenders, that is their payroll). Thank goodness the Noble Baroness aims to make the hitherto-unpredictable vagaries of Judges and their relationships within the Family Law Club whether at the bimonthly jamboree or "strolling on Hampstead Heath" something a bit more consistent and predictable.
Have all the civilised men left the UK? A marriage is an agreement. Certain principles are entered into at the begining of a marriage. Just because the marriage falters emotionally doesnt mean the parties have a right to behave dishonourably.
If a man chooses a non working wife and mother as his partner, then he should look after her even post divorce.
If a man marries an independent woman who continues her career througout the marriage then of course he doesnt have a duty of care to her as she has always been independent.
The same would apply for a stay at home husband and father.
If a contract (agreement) is broken by either party. Then it is a broken contract and neither party should be able to profit off of a broken contract, especially for life. Most divorces are requested by women. Why because they know the court will not force them to uphold their part of the contract and probably will in fact be rewarded by forcing the other party to uphold their part. As stated it was an agreement. But if the agreement is broken (divorce) neither party should be forced to fulfil their part while the other has no obligations to the remaining party in the contract. Slavery or Indentured Servitude is NOT legal in todays age and no longer should be forced on men who have NOT broken the marriage contract.
Andrew Wolstencroft says:
It seems like every time you read a paper these days there are articles and opinions about gender inequality and discrimination and how, despite the enormous progress made over many decades there's still a long way to go until full equality is achieved in the workplace and in society in general.
However, very little opinion is expressed, it seems, on what is surely the most flagrant embodiment of institutionalised inequality and discrimination evident today – the divorce courts.
The latest example to add to an already substantial and ever accumulating body of evidence can be found in the Evening Standard on 6 February. It's the case of Maria Mills, who split up from her husband Graham 15 years ago and was awarded a £230,000 lump sum and £1,100 a month maintenance payments. It seems that, during this 15 year period, she's made some 'unwise' investment decisions which have got her into debt and mean she's unable to meet her basic needs. The decision passed down by the courts is that her former husband has to pick up the tab for this in the form of increased maintenance payments for an indefinite period.
How can it be that this kind of ruling has come to be just accepted, almost as the norm? How can it be justified? What kind of attitudes underpin the idea that this is in any way fair or reasonable?
From a legislative perspective, what other examples are there of legal agreements where a financial duty of care from one party to the other, extends years after the contractual termination of the agreement? Can you imagine leaving a job you'd worked in for many years, by mutual consent, receiving a large financial settlement and then, 15 years later, after you'd made some 'unwise' financial decisions, expecting the company to bail you out!
Why should anyone, after a personal relationship is ended, be entitled to be supported indefinitely by the other person?
Decisions like this are utterly outrageous and send out an appalling message, a message that is impossible to square with the drive for equality. It seems that, as a woman, you are entitled to expect equal employment opportunities, rights and remuneration but you are also entitled to expect to be supported by the man you marry, indefinitely in many cases, even if the relationship breaks down. As a man it is your obligation to provide this support. It's as if the huge societal shifts of the last 50 years or so haven't happened and the courts are still operating to the standards and norms of the 1950s – this must be the perspective from which judgements like this are made.
The evidence overwhelmingly shows that it is men on the receiving end of decisions like this; the law is emphatically not gender neutral , however the legislative guidelines may be written. In fact I'd challenge anyone to provide a single example of a woman being ordered to make indefinite maintenance payments to a man.
This legalised extortion has to stop.
I think it is very widely known that the Courts treat men and women differently. A man is significantly more likely to go to prison for the same offence as a woman. A woman will be treated better in the family Courts. It's something we need to do something about.
The McFarlane case very clearly stated that the onus in joint lives Maintenance was on the payer to prove he couldn't pay, not the recipient to change her situation through hard work. There are extremely unequal obligations in the arrangement. There is neither carrot nor stick for the recipient. The author has no idea at all about the reality of the family Courts if he thinks there is even an ounce of fairness involved in trying to wrap up a JL Maintenance Order. There simply is no argument that 'it's high time you were standing on your own 2 feet'. The only way back is to demonstrate that the payers circumstance has changed, not that the recipients circumstance ought to have changed. 15 years after a divorce, variation proceedings take in to account all the financial 'needs' accumulated after the marriage has ended.
Remember Karen Radmacher? Funny how it took a woman's fortune to make the Courts think seriously about prenups?
Having supported my husband through 15 years of joint lives maintenance and having spoken to literally hundreds of people in the same circumstances, I can tell you that the family Courts are overwhelmingly biased in favour of women. It's something I would never have imagined until I saw it with my own eyes
Yes, it's staggering that people actually try to deny this bias. I wrote a piece on the Radmacher case at the time saying that the only new precedent this would set was to allow judges to decide a prenup should be given decisive weight in the rare instances like this where it was the woman who had the fortune! When the tables are turned and it's a man making a claim on a woman's fortune it's seen for exactly what it is it seems.