The fairness of our legal system is acknowledged around the world. Yet, at the heart of our domestic law of capital and income distribution upon divorce, the married woman remains, by reason of historical and cultural reasons, in cases where resources exceed 'needs', the most likely spouse to recover a less than equal share of the parties' post divorce assets. The married woman is also the most vulnerable of the married parties to any failure of the judicial system to recognise her 'needs' when set against the opportunities which each will have upon marital breakdown following divorce. After many years in practice as a family law barrister, Ashley Murray, in an unapologetic analysis, which traces the struggle for justice of the married woman before English law from the birth of Christendom to William the Conqueror through Tudor times to the women's rights movements of Victoria's reign and on to the present day, challenges the current approach by our higher judiciary in the formulation of the principles and rationale underpinning the search for 'fairness' within the s 25 statutory exercise as instinctively prejudiced against the role of married women generally. He further argues that set against this position, a 'fair and equal' approach between divorcing spouses under the present legislation, which became law a generation ago, can no longer be secured without fundamental reform by Parliament.
The full version of this article appears in the January 2013 issue of Family Law.