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Pearl Davis opined, “okay we got a big super chat, ‘why is she awarded alimony and child support if she went to college and got ran through the whole premise of going to college is what if he leaves’— oh that’s a good point —-‘then why did you go to college if you’re just asking for his assets in a divorce. Just go get a job after the divorce”

Is there any legal merit in this argument?

The consideration seems to be that the rationale for alimony and child support is no longer applicable and true because women have no more legal and social barriers to entering the workforce and are often thought to be rather advantaged over men in the workplace and treated favourably.

Presumably when the divorce regime of blanket 50/50 asset splits and even child support and alimony payments were laid down by the law it was rationalised by the fact that women made greater domestic contributions which should be accounted for against the men’s almost invariably greater financial contributions.

Where did this regime come from, and what if these social conditions seem no longer to be present, can the regime be argued to be obsolete?

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  • Lawmaker said so.
    – Trish
    Jun 28, 2023 at 15:45
  • Pithy as always and of course but which one, and what rationale did they give? Jun 28, 2023 at 16:04
  • 2
    Talking about the political for a law is out of scope here, and you are asking on a social rather than legal-systematic change.
    – o.m.
    Jun 28, 2023 at 16:22
  • 3
    In the US, alimony is seldom awarded. 50/50 asset splits are because the marriage is treated like a partnership. Child support is something else again. What are you asking? Why alimony used to be awarded? Why child support is still awarded?
    – Tiger Guy
    Jun 28, 2023 at 16:44
  • 3
    Alimony is explained here: law.stackexchange.com/questions/86818/…
    – user6726
    Jun 28, 2023 at 16:48

1 Answer 1

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It seems self-evident the spouse who gave up their career to keep the home and raise the children will not post-divorce be in an equivalent position employment-wise (A) as if they had not given up their career or (B) to the spouse who continued their career.

The law doesn't mandate a 50-50 split although there is a widespread perception it does.

The Matrimonial Causes Act 1973 (as amended) is current law. It says of a court making property orders, financial provision orders etc:

s25 (1) It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24 [F124, 24A [F125, 24B or 24E]] above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

(2) As regards the exercise of the powers of the court under section 23(1)( a ), ( b ) or ( c ), 24 [F126 , 24A [F127, 24B or 24E]] above in relation to a party to the marriage, the court shall in particular have regard to the following matters—

(a)the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b)the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c)the standard of living enjoyed by the family before the breakdown of the marriage;

(d)the age of each party to the marriage and the duration of the marriage;

(e)any physical or mental disability of either of the parties to the marriage;

(f)the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g)the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit F128 . . . which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

(3) As regards the exercise of the powers of the court under section 23(1)( d ), ( e ) or ( f ), (2) or (4), 24 or 24A above in relation to a child of the family, the court shall in particular have regard to the following matters—

(a)the financial needs of the child;

(b)the income, earning capacity (if any), property and other financial resources of the child;

(c)any physical or mental disability of the child;

(d)the manner in which he was being and in which the parties to the marriage expected him to be educated or trained;

(e) the considerations mentioned in relation to the parties to the marriage in paragraphs ( a ), ( b ), ( c ) and ( e ) of subsection (2) above.

(4) As regards the exercise of the powers of the court under section 23(1)( d ), ( e ) or ( f ), (2) or (4), 24 or 24A above against a party to a marriage in favour of a child of the family who is not the child of that party, the court shall also have regard—

(a)to whether that party assumed any responsibility for the child’s maintenance, and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility;

(b)to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;

(c)to the liability of any other person to maintain the child.]

In short the division of the matrimonial assets must depend on the circumstances of the case.

The Lords in the House of Lords judgments White v White and Miller v Miller: McFarlane v McFarlane [2006] UKHL 24 supply some history, their observations of how divorce has changed over time, and of course their own rationales for their judgments.

In White Lord Nicholls said there should be recognition of the non-financial contribution of the homemaker/child-raiser.

In Miller:

... to greater or lesser extent every relationship of marriage gives rise to a relationship of interdependence. The parties share the roles of money-earner, home-maker and child-carer. Mutual dependence begets mutual obligations of support. When the marriage ends fairness requires that the assets of the parties should be divided primarily so as to make provision for the parties' housing and financial needs, taking into account a wide range of matters such as the parties' ages, their future earning capacity, the family's standard of living, and any disability of either party.

The contemporary aim is fairness which is not necessarily the same as an equal share. There is a 'yardstick of equality' (from White) but it must be applied as an aid, not a rule.

Miller v Miller makes the point that people will have different views about fairness and that views may change over time:

Fairness is an elusive concept. It is an instinctive response to a given set of facts.

Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. It is not surprising therefore that in the present context there can be different views on the requirements of fairness in any particular case.

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