Tuesday, May 30, 2006

Loose Ends of the British Divorce Ruling

The Law Lords, Britain's highest court, upped the ante in two large divorce cases. They awarded much larger settlements than had been given in the past to two divorcing women. One couple had a childless short marriage; in the other, she had given up a career to raise the couple's children. Both involved significant amounts of money.

The principle at issue, though, is that both members of the marriage are entitled to part of the wealth and the future earnings that the marriage helped make possible. This seems to me eminently fair and long overdue. The buzz has been that now rich men will be less likely to marry at all, or to marry only with pre-nups. That would be sad. But what that really means is that up until now men, especially rich or high-earning men, have been more willing to marry because they knew they could dump their wives and still keep most of the marital assets. That is at least as sad.

There were two loose ends of this story, though, that have had me pondering. One is fault. The other is kids.

One of the divorces in the British case involved a couple who had been married for three years and had no kids. During the marriage, the husband had made a fortune as a fund manager, and would likely make even more in the future. The report of the decision cast the whole question as one of her share of his past and future earnings. As an aside, the reports mention that the marriage broke up because he had an affair. Now, the basic justice of the case is that she did contribute to his fortune by letting him invest in his career while she did everything else. But it seems to me that she is also entitled to something additional – Hazardous S.O.B. Pay, perhaps – for being cheated on, too.

The other issue is the role of custody in who initiates divorce. I have been convinced by Margaret Brinig's studies, which I have written about before, that women are more likely to file for divorce in jurisdictions in which they are almost automatically awarded custody of the children. It seems to me that justice would lead one to make custody awards on a case-by-case basis, so neither party would assume that they would get the kids.

SO, if kids are awarded based on what is good for kids, and money is awarded based on just contributions. This may make for more just divorces. Now if only we could find a way to make fewer divorces.

5 comments:

mary jo tewes said...

So did the woman with children get them? And she got a lot of money too?
I agree when you say kids should be awarded on a case-by-case basis rather than automatically going to one side. It makes sense that it would make that side more likely to initiate divorce if she expected to get the kids.

Gruntled said...

The news reports have not made it clear who got the kids, focusing instead on the money, but I assume she did.

mary jo tewes said...

Funny that they focus on the money in the news. The kids seem more important to me...

John Luke said...

What criteria would be used, on a case-by-case basis, to make for more just divorces based on what's best for the kids?

See, this "best interests of the children" concept has been pretty much denuded of consistent principles and useful meaning -- in the courts and in legislative attempts to update through statutes. Complexity foils.

It is remarkable, really, how much we invite the government (i.e. the courts) into our homes to sort out what we had voluntarily entered into. It is like the Emergency Exit has become the front door for in and out.

Gruntled said...

Yes, if people thought about how much the government would be running their lives, they would be less likely to divorce.