What is the rationale for alimony or 50/50 asset splits?
<p>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”</p>
<p>Is there any legal merit in this argument?</p>
<p>The consideration seems to be that the rationale for alimony and child support is no longer applicable and true because women have no more legal and social barriers to entering the workforce and are often thought to be rather advantaged over men in the workplace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.</p>
<p>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.</p>
<p>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?</p>

<p>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 <em>not</em> given up their career or (B) to the spouse who continued <em>their</em> career.</p>
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<p>The law doesn't mandate a 50-50 split although there is a widespread perception it does.</p>
<p>The <a href="https://www.legislation.gov.uk/ukpga/1973/18" rel="nofollow noreferrer">Matrimonial Causes Act 1973</a> (as amended) is current law. It says of a court making property orders, financial provision orders etc:</p>
<blockquote>
<p>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.</p>
<p>(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—</p>
<p>(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;</p>
<p>(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;</p>
<p>(c)the standard of living enjoyed by the family before the breakdown
of the marriage;</p>
<p>(d)the age of each party to the marriage and the duration of the
marriage;</p>
<p>(e)any physical or mental disability of either of the parties to the
marriage;</p>
<p>(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;</p>
<p>(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;</p>
<p>(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.</p>
<p>(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—</p>
<p>(a)the financial needs of the child;</p>
<p>(b)the income, earning capacity (if any), property and other financial
resources of the child;</p>
<p>(c)any physical or mental disability of the child;</p>
<p>(d)the manner in which he was being and in which the parties to the
marriage expected him to be educated or trained;</p>
<p>(e) the considerations mentioned in relation to the parties to the
marriage in paragraphs ( a ), ( b ), ( c ) and ( e ) of subsection (2)
above.</p>
<p>(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—</p>
<p>(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;</p>
<p>(b)to whether in assuming and discharging such responsibility that
party did so knowing that the child was not his or her own;</p>
<p>(c)to the liability of any other person to maintain the child.]</p>
</blockquote>
<p>In short the division of the matrimonial assets must depend on the circumstances of the case.</p>
<p>The Lords in the House of Lords judgments <a href="https://publications.parliament.uk/pa/ld199900/ldjudgmt/jd001026/white-1.htm" rel="nofollow noreferrer">White v White</a> and <a href="https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd060524/mill-1.htm" rel="nofollow noreferrer">Miller v Miller: McFarlane v McFarlane [2006] UKHL 24</a> supply some history, their observations of how divorce has changed over time, and of course their own rationales for their judgments.</p>
<p>In <em>White</em> Lord Nicholls said there should be recognition of the non-financial contribution of the homemaker/child-raiser.</p>
<p>In <em>Miller</em>:</p>
<blockquote>
<p>... 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.</p>
</blockquote>
<p>The contemporary aim is fairness which is not necessarily the same as an equal share. There is a 'yardstick of equality' (from <em>White</em>) but it must be applied as an aid, not a rule.</p>
<p><em>Miller v Miller</em> makes the point that people will have different views about fairness and that views may change over time:</p>
<blockquote>
<p>Fairness is an elusive concept. It is an instinctive response to a given set of facts.</p>
<p>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.</p>
</blockquote>

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