Day: 2 June 2016

‘Baroness Hale was primarily responsible for the introduction of compensation (SRJ v DWJ [1999] 2 FLR 176). She is a fine lawyer and judge, but she was only briefly an advocate. I am no judge at all with a degree in English, but I have argued a lot of cases. Whilst doing so I have appeared against some outstanding advocates such as Lord Wilson, the late Mrs Justice Baron, Mr Justice Mostyn and Mr Martin Pointer QC. As advocates they looked and in the case of Martin, look to persuade the court. I believe that in presenting a wife’s arguments they would all have rejected submitting that she should be compensated for gender related disadvantage. They would have done so for various reasons. Compensation is a dangerous word as it has its most natural and best established use in the law of tort. It is also manifestly insensitive. Any husband who has maintained his wife and children for, say fifteen years will be hurt and annoyed by the proposition that he should compensate his wife for the experience. He may, or may not be placated by the subsequent reference to gender related disadvantage. At least that shows compensation is a systemic concept, rather than directed at him personally. But fully expressed the words display the origin of the concept in a feminist approach to divorce. The advocate would know that some tribunals would reject the socio-legal concept; if only because another feminist analysis would give primacy to the wife’s autonomous ability to look after.’

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The 36 Group, 18th May 2016

Source: www.36group.co.uk