March 2nd, 2018
Feminism is defined as the advocacy of women's rights on the ground of the equality of the sexes (Oxford English Dictionary). It is a misconception that feminists seek to argue that women should be treated more favourably than men. This is the first of two blog posts which intend to explore the difficulty that the law has notoriously had, or some would argue still has, in treating the sexes equally in proceedings on divorce, separation or in children matters.
Going back several centuries, the inequality between men and women on divorce was flagrant and shocking. A man could be granted a divorce if his wife had committed adultery, even just once. However, a woman could not get a divorce even if her husband had been unfaithful more than once, or had many mistresses. To raise a petition, a wife would need to also prove that he was guilty of incest, bigamy or ‘unnatural vice’ (for example: sodomy, bestiality or the rape of another woman).
The justification for this inequality is unclear, but may have something to do with the ideas of shame upon a woman who has sex outside of marriage; and further damage could be caused to that woman’s reputation if she potentially conceived a child with a man who was not her husband. Adultery was seen as a crime against the male ‘owners’ of women: the law even condoning this view as it allowed a husband to sue the wife’s lover, but a woman could not do the same to any lover of her husband’s. This double standard, rather astonishingly, remained as law until 1923.
Attitudes in terms of women’s equality have moved forwards significantly since this. In fact, very recently came a landmark decision in the quest to acheive equality in family law.
Again concerning divorces; prior to 2001, non-money earners or child carers, usually wives, typically were restricted to claiming a sufficient amount to meet their needs while money-earners were entitled to the remainder. There existed an assumption that the money-maker was entitled to the money they had made and the non-money maker needed to show why they should have some of it. If the non money-maker wished to claim more than the value of their needs, they would need to establish that they had made an exceptional contribution. In reality, this meant that although the other partner had contributed by raising the children, thereby allowing the money-earner freedom to pursue a better career, this contribution was not reflected in the financial division.
However, along came the case of White v White  1 AC 596 which introduced the ‘yardstick of equality’; a notion which requires judges to use a 50-50 split as their starting point, and only depart from this if there is specific justification for doing so. The White equal sharing principle was a welcome update of the law with modern values. It represented the recognition by the law of the different sorts of value each party brings to marriage, and also that marriages involve a partnership based on shared lives and finances.
While, historically, the law has allowed for a disparity in the treatment of men and women in divorce proceedings, things do appear to be moving in the right direction with significant decisions such as that of White v White. Although feminists have had a difficult battle in advancing women’s rights within this area of the law, there is certainly a much fairer system today.
At Hawkins Family Law, we believe that men and women should always be offered the same access and opportunities in Law. We can offer you advice whether you are going through a divorce, separation or experiencing difficulty in coming to an agreement regarding your children. Just give one of our staff a call on 01908 262 680 or email firstname.lastname@example.org.
Having recently graduated with her first class honours degree in law from the University of Bedfordshire, Holly is keen to explore her interest in Family Law. She has previously volunteered with public legal advice services and hopes to eventually qualify as a family Solicitor. Holly joined Hawkins Family Law in August 2017.
Hawkins Family Law fields 'a very professional team that delivers a high-class service and has strength-in-depth from senior to junior level'. Managing director and team head Jo Hawkins provides 'clear and accurate advice and moral support through often testing times for her clients; she focuses on deriving the best long-term outcome for her client and other parties'. The practice has particular strength financial matters, including divorce and ToLATA proceedings. Other key figures include Loraine Davenport, who has strong collaborative law expertise and handles complex children cases and high-net-worth ancillary relief matters; Annabel Hayward, who focuses on complex financial provision and co-habitation matters; and Stacey St Clair.
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Boutique family law firm that punches above its weight in terms of high-value and complex matrimonial finance instructions relating to business assets, pensions and substantial property portfolios, including assisting with the handling of assets abroad. Also represents clients in the negotiation of wealth protection agreements and private law childcare arrangements. Fields a team trained in collaborative law and alternative dispute resolution.
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