Homemaking, Vulnerability and the Valuing of Domestic Contributions upon Divorce
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I chose this dissertation topic as it is something close to my heart. I grew up in Singapore, where there remains an expectation on women mainly to tailor their lives to care for the home and children. Many of my peers, myself included, come from families with only one parent in fulltime employment. I am fortunate to be able to grapple with this expectation instead of merely accepting it, although I recognise this was not an option for many women just a generation ago. The more I learnt about the matter, the more intrigued and perplexed I was about its complexity. Similar to Lady Hale’s judgment in Radmacher v Granatino, I too asked myself what value we should place on compromises done in a marriage and on care work as a whole. This dissertation was my attempt at wrestling with the issue and I hope you enjoy reading this perspective.
-Alina Liew, Author
Introduction
Homemaking is a family-specific caretaking, nurturing family members and fostering maximisation of the wage-earner’s earning capacity. Homemaking is gender-specific, as homemakers are statistically women. This is owing to the enduring patriarchal familial structure: he provides, and she is the child-carer. Although more women (and mothers) are participating in the workforce, many are still homemakers. In the England and Wales, one-quarter of families only have one parent in employment. A ‘full-time working father and part-time working mother’ is the most common arrangement in the English economy.
Homemaking demands the homemaker to be economically inactive for a period. However, the home is ‘not an equal-opportunity employer’, rendering homemakers vulnerable. Instead, there is a deeply-rooted economic coupling between the homemaker and wage-earner. Critically, divorce is now commonplace, with 42% of marriages predicted to end prematurely. Divorce is one of the hardest life transitions as both parties leave a familiar past and enter a highly speculative future, contending with extensive upheavals. Thus, understanding the impacts of divorce on homemakers and the difficulties of the aftermath is vital.
To unravel the plethora of interdependencies from marriage, Parliament introduced the Matrimonial Causes Act 1973 (“MCA”), granting courts unfettered discretion under s.24 to adjust property title, and re-allocate property between parties upon divorce. S.25 provides guiding factors regarding how and whether to exercise its discretion. Significantly, the provision acknowledged to some degree, the homemakers’ non-financial contributions, and potential vulnerability generated by divorce. As per s.25(f), when formulating awards, the courts will consider non-financial contributions. The courts have demonstrated a wife can obtain some share through homemaking contributions. The restriction to financial contributions (as found in undiluted property division under trust law, which infamously causes injustice) was ameliorated, strengthening the homemakers’ entitlement to a larger portion of assets, including the family home.
Without any express objective in the legislation, recommended starting point, or ranking of factors, the MCA left the scope, methodology and usage to judicial discretion. White v White inferred the implicit objective as ‘to achieve a fair outcome’ for involved parties, in a non-discriminatory manner. Bias cannot favour the wage-earner against the homemaker; their respective contributions should be treated equally. Thereafter, ‘fairness’ encompassed three strands: (i) the parties’ financial needs; (ii) compensation for prospective economic disparity from division of functions; and (iii) equal sharing, which often conflict.
A major benefit of this discretionary system is it tailors judgments to the individuals’ needs and circumstances, accounting for changes in social circumstances and expectations. The system ensures optimal decision-making, with the parties’ cases being properly heard on its merits, guaranteeing procedural fairness. This characteristic is crucial for family disputes where a ‘wrong’ answer is potentially costly. It also shifts more resources to the lower-earning spouse upon divorce. For a small asset ‘pot’, homemakers are likely to be favoured if they are the children’s primary carer. Where the ‘pot’ is large, homemakers are protected by the non-discrimination principle.
Despite these developments, this dissertation contends ‘everyday’ homemakers are still under-protected and suffering disproportionately from divorce. The current law only valuates domestic contributions, but underrates the homemakers’ needs and compensation. While the courts will first try to satisfy the parties’ needs in ‘everyday’ cases, the homemaker’s needs per se are not adequately acknowledged. Present remedies provide larger awards only if the homemakers’ needs are substantiated with the children’s needs – most spousal maintenance awards are temporary and contingent on existence of children from the marriage, ceasing immediately upon the child becoming independent. The invisible cap placed over the remedies prompts homemakers insufficiently compensated for their contributions.
This dissertation ascribes this issue to the law’s reverence of the concepts of autonomy, self-sufficiency and clean-break, reinforced by the fear of ‘gold digging’ and undue paternalism. The homemakers’ continued financial dependency is limited, as autonomy respects the husband’s right to leave, unencumbered by lingering marital responsibilities.
This dissertation will assess the effects of the present financial provision on divorce regime within the scope of ‘everyday’ divorces. It refers to divorces which have insufficient assets to provide beyond the parties’ needs. Chapter One will postulate, referencing caselaw, that family law is too wedded to those foundational principles. Thus, subtle pressure of acute vulnerability in homemaking is overlooked. Exemplified by S v S, this chapter reveals the homemaker’s reduced earning capacity has routinely been ignored. Often no compensation is awarded, as judges are swayed by the autonomy principle, finding the wife’s homemaking a free choice. Furthermore, these principles, alongside legislative changes, promote out-of-court settlements, and parties themselves now decide on the division. This is problematic as inequality of bargaining power then thrives.
Chapter Two uncovers the principal cause prompting vulnerability. Specifically, autonomy and its accompanying principles are ‘masculine market ideologies’ which cannot comprehend homemakers’ career sacrifices to fulfil their caregiving obligations. It will proceed to consider the concept of ‘vulnerability’, to illustrate the context behind the homemakers’ choices. The chapter will then propose the courts adopt the lens of a relational autonomy concept, fusing both aspects of traditional autonomy and vulnerability. This is a more gender-neutral analysis, better tackling relationship-generated disadvantages affecting homemakers.
In light of previous chapters, Chapter Three considers the most suitable course in addressing each area of vulnerability. It will consider how introduction of a non-binding guideline can target vulnerability arising outside of the judicial system. Thereafter, it will advocate for economic consequences of marriage and divorce to be shared, recommending opposition of maintenance curtailment, and offer an additional ‘income-sharing’ award for some homemakers. It would acknowledge homemakers’ vulnerability better, compensate for their sacrifices and facilitate the divorce recovery process.
Ultimately, this dissertation argues over-recognition of such principles obscured the reality of the homemaker’s compromised position, meeting only short-term needs but underproviding in the long-run. Effectively, the law makes the homemaker, rather than the wage-earner, pay for mutually agreed compromises present within a marriage. This dissertation believes this cost should be shared. Price of the housemaker’s contributions in entailing personal vulnerability must be recognized, by changing current mindsets, and the basis of awards.
