By Guest Blogger, on 2 November 2011
London should “celebrate” becoming the divorce capital of Europe, according to a well-attended Lunch Hour Lecture by UCL’s Professor Alison Diduck this Tuesday. Ben Davies reports.
Headlines over the past few years have raised concerns about the increase in the number of so-called ‘big money cases’, and the size of the payouts involved. Professor Diduck began by explaining the relevance of these cases to the rest of divorce law; although they seem irrelevant to those outside the super-wealthy, they actually have a disproportionate impact on the law.
This is because they are more likely to be challenged in higher courts, such as the Supreme Court, which set precedents for the rest.
We then heard about several such multi-billion pound settlements, and their combined impact on divorce law in English and Welsh courts. Previously, money was divided on the basis of a principle of ‘reasonable requirements’. This meant that when one partner in a marriage owned most of the assets (if the other had given up work to look after children, for instance) then the courts would decide on what the dependent partner would need. Once that sum had been agreed, the rest stayed with the partner who had the assets in their name.
A case in October 2000 changed that. As Professor Diduck explained, the actual outcome of the case was less important than the language used by the judge, Lord Nicholls. He argued that assets should be divided not on the basis of requirements, but of ‘fairness’, asking why the surplus of assets should go to one partner when both had their requirements met.
Professor Diduck talked engagingly about this principle, and it was hard not to be impressed by her argument that if London’s status as Europe’s divorce capital was about implementing this ideal of fairness, then that is no bad thing. Earlier in her lecture, she had offered some striking statistics about the way that divorce affects men and women differently. For instance, while men on average come out of divorce with their household income up by 23%, the average woman finds her household income down by 21%.
Add to that the fact that women tend to take on the bulk of unpaid housework and childcare, and the principle of fairness looks a lot more attractive than the old idea of reasonable requirements. Cases involving payouts of millions make for easy cynicism, especially when they are presented as one person giving away millions of their personal assets.
However, according to Professor Diduck (whose research interests include feminist perspectives on how law treats social relationships), seeing divorce settlements as ‘payouts’ is the wrong way to look at it. The principle of fairness, she said, is a better way to value the unpaid work that many partners (mostly wives) are expected to do in a marriage. Rather than just looking at who directly earned a household’s wealth, we should also consider the necessary supportive role played by those who don’t earn a wage, in childcare, housework and other unpaid work.
One of the main criticisms of the new principle is that it lacks clarity. We have no way to directly measure the value of the unpaid work many people have to do. Professor Diduck admitted that some details still need to be ironed out (one audience member asked about the difference between money earned before and during a marriage; Professor Diduck said the UK was unusual in not making that distinction).
Still, she made a convincing case in her lecture that we should not see London’s new status as a bad thing, but as helpful to gender equality and so something to be proud of. As she put it, rather than worrying that London is becoming the “divorce capital of the world for aspiring wives”, as one judge put it, we should celebrate it moving away from becoming “divorce capital of the world for aspiring husbands”.
Ben Davies is an intern in UCL Communications & Marketing.
Watch video of the lecture here: