Institutional Injustice
The Family Courts at Work

By Martin Mears
January 2006
ISBN: 1903386489
110 pages, Illustrated, 5 ½” x 8 ½”
$26.50 Paper Original

Are judges enforcing the law or making it? Has the judiciary usurped the role of parliament? The Human Rights Act has given rise to these suspicions, and nowhere has there been greater concern than in the area of family law, where the quality of judicial decision-making has acquired a dismal reputation.

Courts have generally refused to take the conduct into account, except in the most extreme cases, which means that a party who has repudiated all the obligations of a marriage can claim the financial benefits accruing from it. Courts have ‘developed’ the law by promoting concepts of ‘equality’ and ‘non-discrimination’ which do not appear in the legislation.

The injustice dispensed over the years is so routine, and the mindset responsible for it so entrenched, that it can fairly be described as institutional injustice. The author argues that a change in the culture of family law must take place before these defects can be remedied, and this will be impossible while the same few judges are applying the same old rules reflecting the same prejudices. He argues in favor of binding prenuptial agreements, the consideration of conduct in awarding assets, and the right of a child to maintain contact with both parents.


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