A recent story in the media about women’s prison exemplifies the ongoing debate amongst
family lawyers. Why does the court adopt different approaches when looking at men and
women and deciding how families should be organised and funded when they break up?
Some lawyers and judges still deny that the approach is influenced by gender and claim that
it’s all down to fairness.
At least Justice Minister, Simon Hughes, wasn’t in denial about gender neutrality when he
supported the view of women’s groups that women prisoners are essentially a 'special case' and different from male prisoners. They need to be in smaller establishments with greater
access to treatment for addiction and other mental health problems often attributable to their
So not like all the men then who overwhelmingly are also in prison because of problems with
addiction and other mental health issues caused by their upbringing.
Mr Hughes also cited the fact that ‘many more women have caring responsibilities than men
It’s an extraordinary approach in my view. It seems we can discriminate against men, in and
out of our judicial system with complete impunity.
May be Mr Nightingale will be able to play a small part in changing all that.
Rupert Nightingale was a house husband during his relationship with Kirsten Turner, a partner
with PwC. They were together for nearly 20 years. The couple agreed Mr Nightingale, a
photographer with a tiny earning capacity in comparison with his wife, should stay at home to
look after their daughter. The marriage came to an end in 2010 when their daughter was 7.
So how did the court approach this superficially conventional case to make sure the couple
was treated equally? Joint lives maintenance for Mr Nightingale and an acknowledgement
that he had a small notional earning capacity? Not a bit of it. The Judge, Mark Everall QC,
decided it was time Mr Nightingale dug deep and went out and got himself a proper job.
Now as all family lawyers know, wives in this situation are regarded as being at a distinct
disadvantage when it comes to rejoining the job market. With a husband earning £420,000
and a daughter at primary school, I would go so far as to say that I don’t think a Judge would
expect a wife in her 40s to get a job for at least a few years. I’ve even had a qualified solicitor
in her 30s awarded joint lives maintenance. I cannot begin to list the number of wives who
were planning to train as aromatherapists, counsellors and interior designers (notwithstanding
their stellar academic qualifications) who were never expected to earn more than £10,000 a
year. Some were awarded significant training costs for careers that were never going to earn
them more than £15,000 a year.
Very different for Mr Nightingale. How can anyone say that this was not the result of gender
We know it to be true. I still tell husbands that they cannot guarantee that the court will look
kindly on a maintenance claim even when it would be guaranteed if they’d been wife and
mother rather than lazy, work-shy, testosterone-lite man.
Then the Judge turned to looking at the parties’ housing needs. Ms Turner had already
bought herself a new home worth £1.3m using her, no doubt very significant, mortgage capacity. Mr Nightingale has been told that he can have a housing budget of £300,000 (he
won’t have any mortgage capacity) and that this will be found from the sale of the former
I have never seen a case where a husband capable of buying a replacement property worth
£1.3m has not been expected to provide a home of at least equal value to their wife after a 19
year relationship when the wife has been at home with the couple’s daughter.
Mr Nightingale has now been given permission to appeal to the Court of Appeal. Let’s hope
this is the start of a fight back against the thoroughly dishonest way in which the court,
certainly in London, has been approaching these sorts of cases for the last 20 or so years.
Let’s also hope that Mr Nightingale doesn’t get so frustrated that he takes to drink and then
does something foolish and against the law. Because he won’t have access to the cuddly
prison regime that Simon Hughes has in mind for the female prison population. The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.