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

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.


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  1. Spike Robinson says:

    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.

  2. Spike Robinson says:

    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.

  3. D says:

    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.

  4. P says:

    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.

  5. Jane Mainwairing says:

    In this scenario, my close friend is the main breadwinner and has also organised & provided the majority of childcare. Her husband was previously declared bankrupt and does not contribute to either the mortgage nor any household bills. Yet he has demanded half of the home equity and this is supported by his representative. I have encouraged her to challenge this with a lower settlement offer – is she correct t to do so?

    • Sara says:

      Fantastic question, I am in the same boat, he never did any house work either and my child went to nursery from age of 12 months for me to return to work, please let me know if you get an answer
      Many thanks

      • John says:

        Sorry to say that it doesn’t matter. I’ve just been divorced, my ex-wife spent some time at home, but mainly to work on her many degrees over the course of our marriage – no kids. She did some house-chores, but it was probably close to 60/40 (her/me), and complained bitterly when dinner “wasn’t appreciated” by me. All the while, I paid for food, bills, mortgage, vet bills, her car purchase and work, my car purchase and work, about 50% holidays, many presents and house-stuff (flooring, appliances, furniture). Turns out that she also racked up a large amount of debt (think Partylight and Pampered Chef). And yet, she got half the equity in the house, that I solely contibuted to, and she kept all her degrees (yes, ok you can’t split those!). Over our marriage I didn’t expect her to pay anything because she was doing her degrees and I supported her, with the idea that she’d support me later when I wanted to start my own business.

        In the end, it didn’t matter – she spent all her money on degrees, and I spent all my money on living, and she got half the house. Go figure.

    • A says:

      Law is outdated and flawed and does not consider manipulation even when evidenced the marriage on homemaker part was for financial gain. My story is far too long to tell here but in short seduced by current partner leading to divorce of my first partner (yes i accept resonsibility, its a man thing!) Only to realise after many years of abuse financial infidelity and lies she was heavily in debt which was never disclosed. As a responsible husband i paid 100% her debts ..only to find out later she racked up even more. Her lies have led to me being removed from my property at one point (guilty until proven innocent). The evidence i hold is overwhelming in every sense yet on advice i was told you will still need to give half. How in the world is that fair. If your unlucky enough to have multiple spouses who take liberties and share nothing only take, you could find yourself with little on no pension halving each time !. Financial statements and other evidence of doing absolutely nothing to contribute and paying bailiffs who turn up at your door to stop taking YOUR belongings should be considered. This im sorry to say is not the case. Be careful who you link up with, it may take many years to show their true colours and intent. Law is disgusting and needs a total revamp. I’m trapped and still married to the individual by the way, as the financial aspect of ridding this awful person is too costly at my stage if life.

  6. Louisa says:

    I myself am a SAHM of nearly 3 years and husband is main breadwinner – he bought our house and finances everything. He does his share of house diy, gardening and maintenance, often helping cook meals and dishwasher. I look after our boy, our house, cook and take him out each day/activities (far from lazy) our son is my sole focus – my husband wfh full time and has a chilled job, most of the day he plays computer games and relaxes in the home office.. we both put in a lot of effort but yes, he is the money man and has been since I’ve known him, me on the other hand, I’m a creative type and less financially astute. We currently live very close to a 1950’s set up you could say. Do I feel I should be entitled to half, not sure, maybe not, but somewhere I can house me and my son, feed and clothe – absolutely. I’ve definitely taken a back step in our relationship for him to flourish and thrive in his career, our relationship would not have worked or been successful had I have pursued my own purpose. He needed me to take care of everything else a role I have enjoyed but begin to resent.

  7. Karen says:

    This debate always focuses around breadwinner vs homemaker. But what about when the woman is the breadwinner AND the home maker? My situation is exactly this, I was always the breadwinner, supported my husband financially and emotionally through his depression and unemployment, then paying for him to retrain at college to change career and work his way up from the bottom. Now we’re separated he has a very good job but this wasn’t the case while we were together and I was relied on for all financials, as he had a bad credit history. The children when young were in nursery while I worked, but I did everything else for them including all the drop off and pick ups. I managed the finances and running of the house, paid for a cleaner and gardener to maintain the house. Husband would do a few small diy jobs, but larger ones I would get someone in to do. He’d cook a little more often but only as he’d criticise that I wasn’t doing things correctly (although our kids now say my food is better). I also brought in capital just before the marriage from inheritance to go towards the house purchase and further inheritance for home improvements, whilst his contribution was debt that I paid off. Looking back now I feel that the marriage was completely one sided but would any of this be taken not consideration in court?

  8. Jane says:

    I am in a very similar position to yours, Karen. I paid for everything during our 25-year marriage: the house was in both of our names, despite the fact that my husband contributed nothing. He lied about his income (earning almost double that which he admitted to me), and so I paid for all our daughter’s needs. I paid for his car, groceries, and everything in between, and funded him throughout his unemployment. Meanwhile, I also did all of the cooking, cleaning, and caring of our daughter. He left me after 7 years of infidelity, and significant emotional abuse. We have been separated for almost 5 years and he has now filed for divorce. Would any of this be taken into consideration by the court?

  9. A says:

    I find myself in this position also. My ex-husband, who has two children by his first marriage, refused to allow me to have any children. I earned twice as much as him when we met and within a few years I was earning more than 4 times his wage. He had several periods of unemployment, I also set up a business for him whilst I was working fulltime, after several successful years he decided he couldn’t be bothered to run it anymore. We had his two children 50% of the time, my parents did a lot of the childcare whilst they were with us, school runs were shared, I paid for holidays, birthdays, Christmas etc. The house was mine before we met, the mortgage was always paid by me. As well as refusing to let me have children he also refused to buy a house with me or get a pension. I left him April 2016 and divorced Jun 2017, in August 2020 he wrote to my employer to ask for my details so that he could request a financial settlement. This is still ongoing. The premise of the law is based on homemaker and breadwinner, he clearly did neither role. The only case law I can find is Sharpe vs Sharpe 2017 (ours I am told would not be a short marriage but also not considered long) but when asking a barrister to look at my case they said that their was no definition of a homemaker, it is essentially what the law considers you must be if you are not the breadwinner. I am being told not to go to court as my circumstances will not be taken into account and he will be entitled to 50% of my assets, he has at least said he does not want any of my modest savings, which essentially is my house (which I will need to increase my mortgage by over100%) and scarily half of my pensions one of which was only 6 months old when we split up. Is the advice that I am being told about avoiding court correct?

  10. Sarah says:

    It appears the situation is becoming more common from the comments here that the wife is both breadwinner and homemaker. Whilst my ex did (largely) equally financially contribute he has never done anything more than wash the pots and occasionally vacuum in the house. I have done everything + managed the finances, got him out of debt (ccj’s), organised our entire life, cared for 3 children all whilst working and doing a second degree. I bought the house 4 years before we married with a deposit of 45k, I’ve paid into a pension for 20+ years…His favourite phrase was “it’s not my garden” yet he is entitled to half as the starting point seems very unfair.

  11. Unknown83 says:

    There are some obvious logical flaws in the “equal contribution” argument between a breadwinner and a stay at home parent (“SAHP”) that exist, I think, solely because courts cannot reasonably make an assessment of the detail but there are some reforms that I think would lead to fairer outcomes.

    The most obvious flaw is the assumption that a SAHP always makes an equal contribution irrespective of what their spouse earned. If you follow that argument to its logical conclusion then it suggests every SAHP whose spouse earned £100k contributed twice as hard as every SAHP whose spouse earned £50k! Clearly a nonsense, but no court is going to delve into the detail which is presumably why this lazy assumption is made. I don’t think it would hurt for the court to consider the positions of the parties before children. In my case, I had all the qualifications that have carried me in my career and was putting in huge numbers of hours. My spouse on the other hand was unqualified, working in a low paid unskilled job and refused overtime when it was offered. I don’t think it unreasonable for the court to take things like that into account when considering what our relative positions should be after a marriage and find it absurd that a court could ever even attempt to divide our assets in such a way to try and keep us so equal financially. It’s not like I will enjoy the same amount of free time as she does after all so it’s still an unfair outcome, no?

    The second flaw is assuming that they contributed to the breadwinner’s career much if at all and this is becoming especially true as more and more wives become the higher earner in a relationship. There are plenty of people out there balancing their career with homemaking duties these days and plenty of SAHPs whose contribution starts and ends with doing a school run and then sitting around doing next to nothing until the spouse comes home to spend their evening cooking, cleaning, vacuuming, ironing etc. My married life with children has been a decade of doing most of the housework whilst also being the sole earner and my soon to be ex-spouse’s “contribution” to my career has been telephone calls and emails demanding I come home to deal with the children. She will still be assumed to be the SAHP and main caregiver by a court though and no doubt it won’t be long before I’m both paying child maintenance and having the children with me most of the time because she cannot cope.

    The third flaw is a great irony that spousal maintenance these days only tends to get awarded where the payer is a very high earner (over £100k is often cited). In other words, it’s only paid to ex-spouses who were more likely than not to have enjoyed “help” at home like cleaners and nannies. If you’ve been a hard working SAHP slaving away at home for your moderately paid spouse, you have absolutely no chance of getting spousal maintenance because your spouse can’t afford it! If, on the other hand, life has been a series of lunches with the girls, takeaways, nannies and cleaners you might get a bigger share of the assets and spousal maintenance. It’s ludicrous.

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