Updating family justice even-handedly
Published on Aug 2, 2014 7:18 AM
Though the 53-year-old Women's Charter has been amended several times over the years, the fundamentally conservative nature of society has influenced the extent and pace of change. For example, for about 20 years, there have been repeated calls to no avail for mutuality in maintenance obligations.
A change would be consonant with the Charter's direction that "the husband and the wife shall be mutually bound to co-operate with each other in safeguarding the interests of the union", it has been argued. Yet, a dependent husband who has been, say, struck by infirmity would not be able to legally obtain support from an estranged wife who is financially well-off. Instead, what had emerged in the courts this year was the case of a woman demanding alimony from her ex-husband even though he earned much less and his assets amounted to less than half of hers. Such perverse petitions could be consigned to history as the Government has proposed that maintenance be based on need and not only gender when the Charter is amended.
While women are indeed more active economically now and many hold high-paying jobs, there's no gainsaying the continuing presence of gendered wage differentials, the imbalance in the sharing of household chores and the greater burden of caregiving that the wife bears. Consequently, it is more common for women to sacrifice their careers while in the prime of their life, face difficulties later in picking up the strands economically, and accumulate less financial assets. Hence, an alimony-seeking man should not expect the solicitous attention traditionally extended by courts to women, unless he is incapacitated in some way or had been a stay-at-home, unpaid, primary caregiver for many years.
Certainly, these are all factors that a family court judge would weigh when unions break down. Whether family legislation should be articulated in a strictly gender-neutral way or should strongly signal protection for women is a matter of form. What matters is judicial discretion to achieve just outcomes in family matters.
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