Is it right that a spouse who contributed nothing should get half?

Two cherries

For the second time this week I find myself writing a post inspired by a conversation on Twitter between eminent family lawyers. I’ll not go into the details of the conversation, as it contains a huge number of tweets, and still seems to be going on as I write this. In a nutshell, the conversation is about the fair distribution of assets between spouses when they divorce.

Now, before I proceed I should explain that I shall purposely be trying to limit the amount of law in this post. The whole purpose of this post is to discuss what society might think the law relating to financial settlements on divorce should be, not upon what it actually is.

The central issue in the Twitter conversation (or at least that part of the conversation that appeared in my timeline) related to the question of whether it was fair that assets that accrued in a marriage should, as a generalisation, be divided equally, without reference to who was responsible for accruing those assets. To put it another way, is it fair that the person whose efforts were what was responsible for accruing those assets should not be rewarded for those efforts? Or to put it a third way, is it fair that the person who did not put in that effort should benefit from it?

Whether we like it or not it is still true to say that in the majority of marriages one party is the sole, or primary, breadwinner. The classic scenario is, of course, that of the husband being the breadwinner and the wife remaining at home to look after the home and bring up the family. Whilst that may no longer be so common as it once was, and whilst it is not unusual now for the wife to be the sole or primary breadwinner, it is still the case that there is very often a large discrepancy between the values of the assets acquired by each party during the course of the marriage. The main exception to this is probably the short childless marriage, where often the financial contributions of each party are similar.

How this issue of unequal financial contributions should be approached has been the subject of arguments for as long as I can remember, and I’m sure for long before that. There was a time, of course, when the law favoured the husband, who then was almost certainly the sole or primary breadwinner. That time has long passed, and these days conventional wisdom holds that marriage is a joint venture, a partnership of equals. Accordingly, the contribution of the ‘homemaker’ is considered to equal the contribution of the ‘breadwinner’. Or, to look at it another way, the non-financial contribution of the ‘homemaker’ enabled (or freed) the ‘breadwinner’ to make all that bread.

But is this how it should be? Despite the fact that that conventional wisdom has held the upper hand for some years now, there are still many who do not agree with it. These are not unreasonable people – they do not, for example, say that the ‘homemaker’ should get nothing, just that the breadwinner should get the lion’s share where possible, to reward them for their efforts.

It all boils down to that nebulous concept of ‘fairness’. The problem, of course, is that two perfectly reasonable people might have quite different ideas of what is fair. For myself, for example, everything else being equal it does seem fair that homemaking does equal breadwinning, at least in broad terms.

But then there is the fact that things are not always black and white: everything else is not always equal. The whole idea that the contribution of the ‘homemaker’ equals that of the ‘breadwinner’, almost irrespective of the amount of the breadwinner’s contribution, can require a stretch of the imagination (although it could work the other way, with the ‘homemaker’ making a particularly valuable contribution). Sometimes, imagination is stretched to breaking-point where the ‘homemaker’ has made very little actual contribution, for example where there are no children, or where the children and/or the home have been looked after by professional help, and yet they still receive half.

I guess the question is: has conventional wisdom gone too far? I don’t believe that the law causes any ‘breadwinner’ to think that they are wasting their effort (at least until it becomes clear that the marriage has broken down), but I’m sure many will feel aggrieved that that effort is not recognised in the final outcome. This is no doubt because they value their money-making efforts far more highly than the home-making efforts of their spouses – an evaluation that in many cases may be wrong, but sometimes may have more than a grain of truth to it.

 

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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4 comments

Spike Robinson - February 2, 2018 at 10:42am

John, I think you make an excellent and almost unarguable point regarding the not uncommon situation, even for couples who are less than ultra-rich, where the housekeeping and childcare has been entirely outsourced, and entirely paid for from the income of the other partner.

Spike Robinson - February 2, 2018 at 11:12am

The problem really, and it’s the same problem with most of our family law, is that it’s framed and oriented to a single, dated, model of married life. In this case, divorce law and precedent is structured around the idea of a 1950s marriage of the sort that survived until around the 1970-1980s, the point of the last significant reforms (the more recent reforms were administrative window-dressing). In this 1950s marriage, the husband is a stockbroker or similar, who takes his umbrella and bowler hat on the daily journey from their very comfortable, largely paid-for family house in Surbiton or similar, on the train to the City. Meanwhile the wife is very much a ‘wife and mother’, she raises several children, with dedication and involvement and attention to detail, and with good results. She probably manages the household finances with similar attention to detail and good results. A few times a year she attends Guildhall functions with her husband, part of a vital team effort, and similarly once a year or so she puts on a function at their house, for the higher ups and lower downs of the office. They are a team, their contributions in terms of skill and effort are equal. And, crucially, in this idyll from the rose-tinted past, the opportunity to earn as her husband does is simply unavailable to her, because of systemic gender inequalities that are about to be redressed in the exciting decades ahead.

This is the paradigm case, and all the operative law is designed around it. In this paradigm case, the paradigm law is not at all unreasonable and arguably gives a just outcome, even before we consider the question of supporting a wife who has ‘foregone’ a career – an option that didn’t really start to exist until about the time the major legislation was being enacted.

However this paradigmatic case, the case of the (vanishing) upper middle classes, which is who this law was written to serve, entirely fails to address the situation of

– the ultra rich, who are a tiny minority, yet who drive almost all of the precedent cases, thus hugely distorting the law for everyone else – even the upper middle class
– normal middle class and working class people, who are almost invariably are both in a career of some sort, or at least a series of related jobs (careers also being a vanishing thing of the past), with perhaps a mortgaged family home, which both have paid into. This is probably now the typical contested divorce case and (to a lesser extent) the paradigmatic divorce situation
– marriages that most closely resemble the paradigmatic 1950s case, ie, the “Stay At Home Mum” (SAHM) of Mumsnet fame, but are in fact fundamentally different. Because 60 years later, being an SAHM is not a role dictated by a sexist society, but a conscious, rather expensive, and quite attractive lifestyle choice that is elected by members of the affluent middle class. It is one of the most important misapplications of the law, to treat this situation as if it were the 1950s paradigm. It is critically and fundamentally different.
– slightly less well off but no less normal couples, particularly younger people, who have not managed to get on the property ladder and who are, as the sneering denizens of MumsNet put it with unashamed horror, “in rented”. However these people don’t get a look-in. The divorce laws are concerned with people of property, and the laws privilege women in families of property far above any other. This is completely unequal treatment of women, and I often wonder why left-leaning feminists don’t campaign vigorously on this point. (Then I remember that most of them fall into one of the above categories and so would personally suffer if they were to enable their less well-off sisters).
– the actually poor, of course, don’t bother with the family courts because they know full well they are ‘not for the likes of us’ and literally more trouble than they’re worth. There’s nothing a family law court can offer a poor family, even if the process was free, other than wading in to the acrimonious carve-ups of child arrangements. But that is beyond the means of any poor family unless they are willing to play the game of fictitious DV allegations to obtain legal aid.

None of the main types of modern marriage and modern divorce – neither the ultra-rich cases that makes headlines and make precedents, not the elective-SAHM cases that masquerade as the 1950s paradigm, certainly not the working marriages of ordinary people, and not even remotely the marriages of the unpropertied and the actually poor – are in any way properly served or addressed by the existing law and existing paradigm. Instead we have a slow stretch of case law, attempting to accommodate changes in social relationships and societal values, but actually dominated by precedents set in cases where eye-watering sums are argued between usually egotistical, narcissistic, mercenary businessmen and their often equally egotistical, narcissistic, mercenary wives.

This failing creep of case law is a clarion call for meaningful statutory reform – and I don’t mean just window-dressing the ‘no fault’ laws from de facto to de jure. In fact it is reminiscent of the situation for which statute law was first invented, when the common law had groaned so long trying to creep to accommodate social reality that it had become evidently unjust and evidently unfit for purpose. We are approaching such a time now, in respect of the Family Law.

D - February 5, 2018 at 8:55am

Exactly as others have commented, marriage law frame an out dated model of relationships imposed by the reminents of a religious state.
When we’re looking to close gender pay gap (a significant cause by stereotyped roles and lack of sharing of the role of care giver) shouldn’t we at least start to legislate to move towards encouraging people to take joint responsibilities.
Instead legislation is desperate to create something that looks and is treated like marriage. Obviously things would be simpler without men in the equation, but the reality should be interchangeable roles.. unless we want to go back to the 1920s or eliminate the less fair gender.

P - March 11, 2018 at 6:10pm

Yes, but the flaw in any proposition that “bread winner and home maker” make an equal contribution to a marriage is that in many instances “home making” efforts can be sadly lacking. You are right, John, this is all premised on one partner running the household – looking after the children, keeping the home clean and tidy preparing the meals etc. All very 1950’s, and scrubbing the front step, isn’t it? The reality can be very different. Someone who stays at home and spends the greater part of the day glued to the TV screen, socializing with friends or a bottle of Blue Nun, does little housework and throws a frozen pizza in the microwave when the children get home from school is hardly an equal partner. And, in how many marriages does the bread winner also undertake some of the home making duties – looking after the garden, decorating and maintenance, taxiing the children around at weekends and a share of the housework, too. When the marriage breaks down it is bread winner’s assets and contribution that are tangible and irrefutable – capital in the house, a pension and other financial assets. But, that of the “home maker” – a mere presumption. And, in reality, I cannot think of any other contractual relationship that is more unequal, and less fair, than marriage. I have managed to keep this short piece gender neutral but as a rule, home makers tend to live a little longer than bread winners. Very little is fair in life – and, certainly not in divorce.

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