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Family courts 'dispense injustice on routine basis'
By Joshua Rozenberg, Legal Editor 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
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.
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