Terrible bias that men suffer in divorces badly needs rectifying
Published 21/03/2014 | 02:30
Ireland voted for divorce by the tiniest of margins back in 1995, 0.7 percent to be precise. I wonder how differently that vote might have turned out if men had been able to look into a crystal ball and discover that in divorce cases involving children they would almost invariably end up as the losers?
New research based on over 1,000 judicial separation and divorce cases that appeared before the Circuit Courts over the last four years has confirmed that women almost always get custody of the children, they get to live in the family home, and the father has to pay maintenance which can sometimes push him below the poverty line.
The decision to give the mother the family home and to make the father pay maintenance rests on the first decision which grants her effective custody of the children. If she didn't get the children, and the father did, he'd probably get to live in the family home and she might have to pay maintenance.
But in 95pc of cases the children get to live with her and this is why fathers lose out in the courts again and again. Columnist John Waters has been drawing attention to this manifest injustice for years.
That figure of 95pc makes one very big assumption, namely that in 95pc of cases the mother will be a better parent than the father. Is that really plausible?
Based on how heavily the dice is loaded in favour of women it is no wonder they are the ones who apply for divorce in more than 70pc of cases. If a woman is unhappy in her marriage and knows she will get the children and the house and maintenance, then divorce is a much less risky proposition for her than for the husband.
In the United States and the United Kingdom it is also the case that women initiate the big majority of divorces. If she hasn't already done so, the author of this new research, Roisin O'Shea, might look at jurisdictions where the dice is not so heavily loaded in favour of women and see how often they file for divorce in those countries compared with men.
Writing in this paper on Tuesday, Dearbhail McDonald said the research "shows we are still wedded to a very traditional definition of the family and how to deal with family issues when marriages break down".
I suspect, however, that this is only part of the story. It is probably true to say that judges overwhelmingly believe the mother will make a better parent than the father because they are "wedded to a very traditional definition of the family".
On the other hand, many of the reforms made to family law were inspired by feminist thinking. I don't say this as a criticism but simply record it as a fact.
So it is a combination of feminism and traditionalism that has resulted in today's very strong bias in favour of the wife and mother.
Reporting on the new study on Tuesday, the Irish Independent published a photo of a poster from the 1995 divorce campaign with the slogan 'Hello Divorce... Bye Bye Daddy. Vote No!'
I remember criticising that slogan at the time because at face value it seemed to insult fathers by suggesting they would be happy to walk out on their families once divorce was introduced. In fact, it was really saying that once divorce was introduced fathers could be kicked out of the family home and allowed to see their children for a few hours a week only.
This is fabulously unjust. What makes it more unjust is that the father could find himself out of the family home and reduced to a part-time role in the lives of his children even though he did absolutely nothing wrong.
This is because Irish divorce and separation law does not take 'fault' into account. We are a 'no-fault' jurisdiction.
This means a wife can leave a husband (or vice versa) for a new partner thereby deliberately breaking up the marriage and the court does not have to take this salient fact into account.
The blameless spouse simply finds him or herself divorced against his or her will, and if it is the husband, he is doubly in trouble because his wife will almost certainly have custody of the children and possession of the family home.
This is deeply ironic when you think about it because divorce was introduced in the name of freedom and justice. However, under our laws a person can be unilaterally divorced against their will and in very unjust circumstances.
What is to be done? I am not arguing for the repeal of our divorce and separation laws but they do need to be reformed.
One reform is to reintroduce some consideration of 'fault' when a spouse is being divorced without their consent.
Another is to end the bias in favour of mothers. It will probably remain the case the women still get custody in the majority of cases but the current 20-1 bias in their favour is clearly ridiculous.
With reforms like these the scales of justice when a couple is divorcing or separating can become more evenly balanced again. In fact, rebalancing the scales should be made a priority of this government.