There is often a perception that the law on divorce in the UK favours the female party. This could be due to the increase in and awareness of charities such as Fathers4Justice who are campaigning for father’s rights with a particular emphasis on children being separated from their fathers. It may also be the changing family dynamic and the shift towards equality within the home such as emphasis on both parents going out to work, both parents sharing the child care, and contributing to the household tasks generally.
Whatever the reason, is there any truth in divorce favouring women over men?
Topics to be answered in this article
What does the Court say?
The court does not favour women over men in a divorce. The court takes factors into consideration that goes beyond gender, and the court cannot discriminate, but must base its decisions on evidence produced to it. It is not linear; the court must have regard for multiple factors which includes the welfare of children (if there are any) and the respective needs of the parties. In addition to this, the court will focus on how fair any proposal (financial or child arrangements) is to each party in ALL of the circumstances; this is the case even when the proposal has been agreed by both parties.
What the law says about finances in a divorce
The starting position of finances in divorce is 50% to each of the parties. However, more often than not this is not always achievable and this is because fair does not mean equal. Nor do fairness and equality always compliment each other. The court has to approve any financial order, even if it is agreed between the parties. The aim of this is to ensure that the proposal contained in the order is fair and meets the needs of both parties. Ultimately, the needs of the parties will differ on divorce due to a number of factors.
For example one of the parties (typically the wife) has a need for property because it has been agreed that she will care for the children. She would therefore be willing to take more of a share of the equity from the property to be able to give her a deposit for another property. She could therefore agree to take less of a share of her husband’s pension. This is called offsetting and comes up more often than not when dealing with finances in divorce. In any event, an agreement between the parties depends on what the parties can agree to and accept. The example used above can, however, be switched and work the other way. The point is, it is not based on gender, it is much more complex than this.
The most important part of this, is that it is not gender specific and works either way. Circumstances may mean that the wife needs to provide spousal maintenance to the husband if this allows the parties’ needs to be met.
What the law says about children in a divorce
Under section 25 of the Matrimonial Causes Act 1973 the first consideration for the court is the welfare of any minor. This is of paramount concern to the court. If the parties cannot come to an agreement between them about the arrangements for the child, then the court may be asked to make those decisions with the welfare of the child in mind. This could include the arrangements for who the child resides with or when the child should spend time with the non-resident parent.
It is important to note that the courts are encouraging both parents to have a relationship with the child in the event of a marriage breakdown or separation. This is because research evidence demonstrates that children thrive when they have positive relationships with each parent, and the court understands and will implement this where it is safe to do so. This does not mean that 50:50 care of the child is the answer, it very much depends on the circumstances and whether this is in the best interest of the child.
An example of where this may not be is where the child finds it too disruptive and confusing. The courts approach is very child focused, not based on either parent’s rights or gender. It also has to be a practical arrangement for both of the parents; whilst 50:50 care of the child may be what is wanted, in practice this may not work.
So does the law favour women in a divorce?
The perception that women are favoured when getting divorced could be due to the historical family set up e.g. the husband works and brings home the money and the wife stops working in order to raise a family. The implications of either party giving up work to raise children come to fruition when going through a divorce. However, this is true for both parties who find themselves in this position; if either party to the divorce has given up their career or taken a career break to bring up a family then their earning capacity and pension value could be depleted dramatically.
This is not specific to women; the aim is to create fairness and meet the parties needs when deciding how to distribute assets. Therefore, if there is a large disparity with the parties pensions for example, the aim is to reduce this to ensure that both party’s needs are met. It is important to note that income and capital satisfies an immediate need however, the pension should be considered valuable for the future needs of the parties.
How can Goughs help?
Goughs have a dedicated family team who are experienced and can assist with obtaining a fair settlement for both parties, irrespective of gender. Another option could be a prenuptial agreement can also be drawn up to set out the intentions of the party before the marriage takes place.If you would like some assistance with financial agreements or prenuptial agreements, then Goughs can help.
