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Is Family Law Biased Towards Women?

We often hear stories of men who claim that divorce settlement and child custody arrangements are biased towards women. Is this generally true though, or is it a false perception amongst those who have seen cases go against them? This partly depends on how this subject is viewed. It is more common for men to pay maintenance towards women than the other way round and Mothers have primary custody of children more often than Fathers. The reason for this is not that the system is biased but because circumstances are more often such that this is necessary or more convenient.

When a woman "wins" a divorce case or child custody it is usually for a good reason. Men, on average, work more hours than women with the majority of stay-at-home parents being Mothers. This means that post-separation she may be in a better position to have primary custody of their children purely from a practical point of view. In terms of both child maintenance and spousal support, the fact that men earn more than women means they more often pay this. Where it is the other way round it is usually the woman who pays support.

There are many cases of women giving up work after having children or cutting down the hours they work, therefore limiting the opportunities of career progression. Where this is the case the entire family is usually mainly financially supported by her partner. Most of the time it is deemed that after a separation this should, to some extent at least, continue.

Family trends are changing to some degree. There are more stay-at-home Dad's than ever before and more women are high-earners. Looking at the population as a whole though, men still work and earn more and women staying at home to look after children is more common. The slightly changing trends have seen a rise in the number of Fathers having primary custody of children and women having to pay support.

Some arguing that family law is biased towards women point to some of the data regarding the high number of men paying maintenance to former partners and the high proportion of women who have child custody. In the majority of cases, though, this is not decided through the family law courts, but between former couples themselves. The majority of child custody cases do not go to court. More often than not parents decide between them that children should primarily live with their Mother with men deciding it makes sense due to their work commitments. This means the majority of children live with their Mothers post-separation but not because family law is in their favour but because a former couple decide between them that it is the best option. Decisions regarding finances are more often decided through the legal process.

There are two key reasons for women more often being supported by men after a separation and for women more often having primary custody of children. When decisions are made through the legal system women are not "favoured" because they are women but because of the circumstances. They tend to be lower earners so receive spousal support and are often in a better practical position to look after children. The other important thing to remember is that decisions are often made between former couples rather than through the courts.

Andrew Marshall ©

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