Same-sex couples may be next in line to experience the
'institutional injustice' of the family courts
Judges are increasingly making law
instead of ruling on it, according to a new report from the
independent think-tank Civitas, and the Human Rights Act has
provided them with the perfect basis for doing so. The Act's
supporters sometimes deny this but the truth was admitted by a Law
Lord, Lord Hope: 'It is now plain that the incorporation of the
European Convention on Human Rights into our domestic law will
subject the entire legal system to a fundamental process of review
and, wherever necessary, reform by the judiciary'. (p.3. Emphasis
added.)
With rising numbers of divorces, the average
citizen is most likely to experience the court system in the family
courts, and it is here that the quality of judicial decision-making
has acquired the worst reputation. In Institutional Injustice,
Martin Mears, the former President of the Law Society, shows how
some judges in the family courts have 'developed' the law by
promoting concepts such as 'equality' and 'non-discrimination'
(which are not to be found in the Matrimonial Causes Act) to an
extent amounting to virtual new legislation (pp.53-58). The result,
he argues, has been a culture of 'institutional injustice' in the
family courts, with astonishing judgments that take no account of
even the most flagrant examples of bad conduct and bad faith. Martin
Mears now warns that same-sex couples may find themselves smarting
under the same unjust regime, when relationships formalised under
the new civil partnerships legislation start to break
down.
When is
a contract not a contract?
It is a generally accepted rule of contract law
that, when a contract breaks down, the party responsible should
compensate the innocent party for their disappointed expectations.
This is not so in family law, where judges refuse to take conduct
into account in divorce hearings except in the most extreme cases -
and not always then. Martin Mears cites the case of a woman who
stabbed her ex-husband in the stomach and was convicted of assault.
The judge held that this conduct justified a reduction in
maintenance from £195 a month to £50 a month, but not its abolition
(p.31). In an even more disturbing case, a woman hired a hit-man to
kill her ex-husband 35 years after their divorce. In this case the
maintenance order was discharged, but the judge ruled that: 'it is
not every homicide, or attempted homicide, by a wife of a husband
which necessarily involves a financial penalty'.
'What can these extraordinary words mean other
than that if Mrs Evans had been able to put together a plausible
tale in mitigation, or if she had come before a more amenable judge,
she could have received her maintenance until the day she or her
husband died?' (p.32)
The result of this refusal to take into account
the conduct of divorcing parties is that 'a party who has repudiated
all the obligations of the marriage can claim the financial benefits
accruing from it to the same extent as if he/she had behaved
impeccably'. (p.75). Some of the rulings of the family court seem to
defy all concepts of justice, and sometimes common sense. A man
whose ex-wife applied for an increase in her maintenance, on the
grounds that she had given birth to a child by an Irishman who had
returned to Ireland, objected to being asked to support another
man's child. The judge ruled against him, and granted the wife's
petition, on the grounds that: 'For all we know, the child may have
been conceived in circumstances that reflect nothing but credit on
the wife, for example under promise of marriage from the father'.
(p.38)
In the case of Clark-vs-Clark, the wife,
according to the judge, 'did not love her husband and she only
married him for his money' (p.19). She refused him his conjugal
rights, put him into a geriatric home, used his wealth to shower
gifts on her younger lover, and drove him to an attempted suicide.
She was nevertheless awarded a package worth £552,500, reduced to
£175,000 on appeal, on the grounds that 'it would be harsh in the
extreme to leave her with nothing' (p.23).
Who
will be the first gay divorcee?
It is impossible for people to protect their
assets by drawing up pre-nuptial agreements, as these have no
standing in British courts.
'It is not surprising that for wives married to
rich husbands, London now rivals California as the divorce forum of
choice. Indeed, … it is surprising that any rich man marries at
all.' (p.101)
However, Martin Mears warned today that these
questions, which used to be regarded as being relevant only to
heterosexual couples, are about to become live issues for the gay
and lesbian community as well, under the new civil partnerships
legislation.
'If I were asked for advice by a man or woman
considering entering upon a civil partnership, I would ask who was
bringing the larger share of assets to the relationship. If my
client had more valuable assets, I would advise him or her against
entering such a partnership, given the record of the courts in
regarding all assets as joint assets, even when one partner has
contributed little or nothing to the joint stock. The divorce drone
could easily become a reality for same-sex couples, after a long run
of almost unbroken successes in the family courts following the
breakdown of heterosexual relationships.'
'Institutional Injustice:
The Family Courts at work' by Martin
Mears is available from Civitas, 77 Great Peter Street, London SW1P
2EZ, tel 020 7799 6677,
http://www.civitas.org.uk/ ,
for £10.50 inc. P&P.
For more
information ring:
Robert Whelan 020 7799 6677 (w)
020 8948 6709
(h)
07732 674476 (mobile)
An unfair system
Dec
31, 2005
Expressandstar.com
Judges ruling in divorce and child custody cases have
become a law unto themselves - a law that is deeply biased against
the rights of husbands and fathers
One
of our leading solicitors, Martin Mears - a former president of the
Law Society, no less - has taken up the cudgels against a legal
system that is deeply unfair. He blames the Human Rights Act for
giving judges the ability to make law rather than simply rule on it.
As a result, our family courts are now "institutionally unjust",
says Mr Mears.
For
years men have been the losers in thousands of custody battles,
denied a chance to play a role in the upbringing of their children.
By siding with ex-wives in virtually every case, judges have denied
a generation of children from broken homes the right to a vital male
role model.
If
the story was reversed, and women were losing out in these family
court battles, we would have seen years of high-profile campaigning
and this Labour government would have immediately given in to their
demands.
But
it is different for men. It is assumed a father has less interest in
being a parent than a mother has. In virtually every case this is
absolute poppycock.
And
yet it has taken the action of protest groups like Fathers 4 Justice
to highlight this injustice. Only Bob Geldof and a handful of other
high-profile supporters have been prepared to back such fathers'
groups, compared to the small army of politically-correct supporters
of women's rights.
If this Government
does nothing else in 2006, it should tackle an iniquitous and unfair
legal system that continues to automatically assume that, for some
reason, men are second-class parents.
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