Family
courts 'dispense injustice on routine basis'
By Joshua Rozenberg, Legal Editor
http://www.telegraph.co.uk/news
Telegraph
- 30th December 2005
Family
courts are accused of promoting "institutional injustice"
in a report today from the think-think Civitas.
Its author,
Martin Mears, says the Human Rights Act has "made the courts into
quasi-legislators".
The "guiding
principles now applied are the achievement of equality and non-discrimination",
he writes, pointing out that these concepts were not mentioned in matrimonial
legislation.
"In particular
cases the justice applied by the courts would not be recognisable as
such to anyone else," Mr Mears continues. "The injustice dispensed
over the years is so routine and the mindset responsible for it so entrenched
that it can fairly be described as institutional."
In dividing
a couple's assets on divorce and making financial orders, the courts
had generally refused to take the parties' conduct into account, he
explains.
"This means
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 or she had behaved impeccably."
Mr Mears, a
solicitor who served as president of the Law Society in 1995, says the
"meal-ticket-for-life principle continues to flourish" in
the family courts.
"There
is a deep pro-wife bias, with every single presumption in her favour
- the most egregious being that every wife's contribution to the marriage
is deemed to be equal to that of the husband even when plainly the contrary
is true."
Uncertainty
in the law had led to huge legal bills in contested matrimonial cases,
he adds. "The costs of matrimonial litigation are wholly disproportionate
and occasionally, as even the courts admit, outrageous."
Mr Mears makes
four recommendations for reform:
-
Pre-
and post-nuptial agreements made with proper legal advice should
be fully binding. These agreements would not affect the courts'
power to make awards for the benefit of any children.
-
In
making a financial award, any assets owned by one of the parties
before the marriage should normally be disregarded.
-
Spousal
maintenance should not be awarded to a party who by his or her conduct
has repudiated the marriage.
-
The
right of a child to maintain maximum contact with both parents should
be recognised in fact as well as in principle. This means that a
custodial parent would not, save in exceptional circumstances, have
the right to move abroad.
Although the
Civitas pamphlet does not deal with the new law on civil partnerships,
Mr Mears points out that the courts would follow similar principles
when dissolving these relationships.
"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," says Mr Mears.
