In a recent blog I was very dismissive of a law firm that has opened in London who specialise in acting only for men. I felt that it was more of a marketing gimmick than a business strategy, and that a good family solicitor needs to have experience of acting for both men and women if he or she is going to be able to do their job well.
It turns out that the firm in question is the London branch of a US firm with 170 lawyers, so, hey, what do I know? I’m just a sole practitioner from Essex. Maybe they’re on to something.
I still don’t think it’s a good idea to act only for men. However, it has caused me to think about whether or not the legal system discriminates against men.
A lot of fathers perceive that the legal system works favours mothers, and that if they apply to the court for, say, a Child Arrangements Order that their children live with the father, they are bound to lose. Such applications often don’t have much chance of success, but this is not because the court is biased against the father. The Nuffield Foundation has recently done some research confirming that men are not discriminated against. If there is a bias, it is a bias in favour of the status quo. The court will not change arrangements unless there is good reason to do so, as this mother found out to her cost recently.
The world being the way it is, children tend to remain with mum when a couple separate. That is increasingly less the case and I see growing numbers of cases where children have stayed with dad after a separation. The bias in favour of the status quo works equally well for them, as the court will need a good reason to change arrangements and send the children to live with mum.
Fathers who are seeking Child Arrangements Order defining how much time they spend with their children (what until 2014 used to be called “contact” or before 1989, “access”) are much more likely to be successful. There is a presumption that children should spend time with their non-resident parent (i.e. usually a father) and there needs to be a very good reason to justify this not happening. Most of the arguments here tend to be about quantum, rather than principle; i.e. how much time a parents spends with the course, not whether or not that parent sees the children at all.
A lot of fathers feel they come off worse here. Fathers nowadays tends to be much more hands on than they were a generation ago. When I drop my son at school, resplendent in suit and tie (me, not my son), I see a lot of Dads who are dressed down and clearly do not need to be at the office by 9 am sharp. Many of them are househusbands, full-time or part-time. Not surprisingly, dads may feel that only seeing their children every other weekend is just not fair. The courts increasingly address this by making orders dividing children’s time between their parents more generously, or even equally (in what until last April was known as a joint residence order). However, those types of arrangements only work where parents are capable of a high level of co-operation, which some parents just cannot manage. there may also be significant practical difficulties that make it unworkable.
Most importantly, in disputes about children, the court must do what is in a child’s bests interests, This may not necessarily be fair to one or both parents.
What about in financial disputes? Men often feel that they come off worst in financial disputes as their wives get maintenance and/or a greater share of the assets. I can absolutely understand why this seems harsh to men, but the reality is that it is all about achieving a balance between fairness and meeting everyone’s needs, especially children’s needs. In most cases, husbands earn more than their wives and children tend to live with the wife, so the scales tip in the wife’s favour if a fair split of the assets and income does not meet her and the children’s needs.
On the whole, I don’t think that the system discriminates against men, but there are areas where it may do.
1. Maintenance for husbands.
The court has the power to order a wife to pay spousal maintenance to a husband if this is necessary to meet his needs. This would be most likely where the wife has a significantly higher income than the husband, especially if the children are living with the husband. However, I cannot recall ever seeing a spousal maintenance order in favour of a husband. There is a presumption that a clean break order (i.e. no spousal maintenance) should be considered wherever possible; I cannot help but think that this presumption is applied readily in cases where the wife is wealthier. Having said that, long term spousal maintenance is much less likely these day and clean breaks are much more likely.
2. Legal aid.
Legal aid in family cases is now very hard to come by. It is only available for victims of domestic violence and forced marriage and for parents whose children may be taken into care by the Local Authority. Victims of domestic violence can get it not just to cover an application for a domestic violence injunction, but also to cover disputes about divorce finances or children.
The vast majority of people who apply for domestic violence injunctions are women; applications by men are rare, although domestic violence against men is a problem of which society is becoming increasingly aware. The respondent to an application for a domestic violence inunction is most likely to be a man, but he will not be able to get legal aid to oppose an injunction application. When I began practising family law in the 1990’s, the then Legal Aid Board would not grant legal aid to a husband who was facing an application for a non-molestation order, (barring the husband from assaulting or harassing the wife), but it would grant him legal aid to defend an application for an ouster or Occupation Order that would throw him out of his home; in those circumstances, if he was financially eligible, he would get legal aid to fight it.
Not any more. The applicant (usually a woman) has to pass a merits tests to justify getting legal aid from the Legal Aid Agency, but there is no means test; she will qualify for legal aid regardless of her means, although she may have to pay a contribution from her income or assets). The respondent (usually a man) simply cannot get legal aid, regardless of the merits of his case and regardless of his financial circumstances.
The burden of proof is on the applicant to show that the respondent’s behaviour justifies an injunction being made. Giving her legal aid strengthens her position unfairly and it might be argued leads to an effective presumption that the application for an injunction should be granted.
It is very difficult to argue that this is fair. Domestic violence is very serious problem and governments of all colours over the last few years have taken greater and greater steps to combat it. However, there is a lack of fairness inherent in these changes. Moreover, (and it may shock you to learn this) but there are cases where some women make false allegations to get what they want.
When these changes were introduced, lawyers confidently predicted that it would be challenged in the European Court of Human Rights. To date, I am not aware that any challenge has been made.
4th July 2015