The period between 1839- 1960 saw the subjugation of women in society – divorced or separated women were not allowed to keep their children. Women who committed adultery or who were employed were refused child custody by English courts. The Family Law system in the UK bent over backwards to accommodate and please male parents in custody issues. Usually, children, be it minor or adult children, often ended up staying with the father in the matrimonial home. The mother was usually cast out of society and was forbidden to have any contact with the children.

But the divorce reforms of the 1970s changed the legal and social environment. Courts began to see the female parent as being equal. The female parent was designated as the primary caretaker of the child. According to Justice Professors at the Princeton University, custody issues began to tilt in favour of women especially in the case of minor children. Family courts began to exercise their discretion and deemed it necessary for children to be under the sole guidance, love and care of the mother during the initial years of development.

In addition, the court bias towards the mother stemmed from the fact that biologically and cognitively, women were more equipped to deal with childcare responsibilities. Their emotional constitution combined with their personality traits made them the ideal caretaker for children when they were growing up. The courts also held the traditional homemaker perspective. They argued that women tend to spend more quantity and quality time with children – they are more involved in a child’s life and school activities as they do not do a full-time job. In short, the UK courts fell back on the concept of traditional demarcation of household duties and gender responsibilities – the wife was supposed to be the homemaker giving birth to children and taking care of them while the husband was the wage earner, earning a living through full-time employment to support the family. The husband had no interest and was not supposed to pay any attention to family matters.

Thus, the English law upholds this traditional division of gender roles and believes that women are more suited to childcare. But all this drastically changed in the 1980s as women began to take up full-time employment and gender roles vanished. Today, courts tend to accord custody based on the particular circumstances of the case. Social activist organisation of Fathers 4 Justice feels that courts undoubtedly favour women in all custody judgments. But the UK family courts under Justice Thorpe beg to differ. They argue that custody is not a question about the ego of the parents – who can take better care of the child? The court agrees that both parents can take good and proper care of the child individually. Custody is a matter of deciding which parent serves the child’s welfare and interests better?

The court further claims that a child feels most comfortable with the female parent as she is the one who gives birth. This indicates that there is an innate understanding and bond between the mother and child. This bond is especially strong in the case of minor children who are emotionally and cognitively dependent on the mother. As the child grows, custody scales tend to tilt in favour of the father. But the court cautions, this does not mean that the role and importance of the father is inconsequential in a minor child’s life. In short, both parents are equally important to the child. Since the 1990s, the UK Family courts are leaning towards the concept of Shared Parenting.

Close on heels, comes the related issue that divorce judgments favour women as courts see them as the weaker sex. This is completely untrue and baseless. The Justice Professors at Princeton University hold that men and women are treated fairly in divorce cases. Here a distinction has to be made between ‘fairly’ and ‘equally’. Being treated fairly does not constitute being treated equally. Divorce judgments are fair but seldom equal – usually courts decide in light of mitigating present and future circumstances. Thus, a husband may end up on the receiving end of a harsh judgment which might be fair but not equal. Courts consider a few influential factors in making a judgment:

• The material, social and emotional investment made by the female or male partner respectively if they are not working

• The future income benefits accruing to the female or male partner if she or he had still been married

• Which partner has child custody? What is the type of custody being accorded?

• What are the terms of the financial settlement?