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.