Earlier this week we posted an article which posed the question who is worse off after divorce, men or women?
We deferred discussion on that point to our new series in which we explore some of the more controversial aspects of family law. Each Friday we aim to consider some of the more difficult questions that arise in the field and perhaps even generate some polite debate. We’re calling the new series “Myth or Fact”.
As the article canvassed, the study by the Australian Institute of Family Studies found that men were slightly worse off after a divorce, which it was suggested was in contrast to the opinions of some experts who believe women end up worse off. Men’s rights groups strongly believe that men are treated unfairly by the family law system as a whole, including in property settlement matters. So what is myth and what is fact?
As a starting point it should be noted that the law is gender blind – there aren’t different rules for men and women, the case law doesn’t differentiate with respect to gender, there is no reason to assume that one side or the other will be more successful or get any sort of preferential treatment. There are, however, a few practical considerations that might skew the impression of the outcome one way or another.
Let’s take the example of Sam, a 45-year-old architect with a son, aged 12, and a daughter, aged 9. Following the breakdown of the marriage, the parties mutually agree that Sam should move out of the family home and rent an apartment while they sort out what’s going to happen with the kids and how the property should be divided.
This makes sense because Sam is the primary breadwinner and has access to a regular source of income that makes renting an apartment possible. Allowing the primary caregiver and the children to remain living in the matrimonial home also provides some much needed continuity for the children as they try to cope with the upheaval of their parent’s separation. The parties, however, still have to keep up the mortgage payments on the family home or risk losing the house to the bank. Even just in taking that one decision there’s already an increased financial burden on Sam and there will be many more as the parties now maintain two households on the same income with which they previously maintained one.
The practical realities of Sam’s job means that it has been difficult to always be available for all the children’s activities. For example, a site visit on the other side of town might mean missing a school pick up, soccer or piano practice. Early team meetings mean that Sam isn’t reliably available to get the kids ready for school each morning. This wasn’t a problem while they were together as the parties mutually agreed that one of them would be the primary breadwinner and the other would be the primary caregiver. That made sense at the time because Sam had a much higher earning capacity.
Many couples would prefer to revisit this arrangement after a relationship breakdown but in reality it is not always that easy. First Sam would have to manage work commitments to be able to take on a half-share of the child-rearing commitments. Even if that was possible, if the other party hadn’t been working full-time, they’d need to find a new job. That might be complicated by the fact that they’ve spent many years either out of the workforce, or otherwise forgone advancement and training opportunities. Whilst equally sharing child-rearing obligations is presumed, it is often difficult to implement in practice.
To take that point further, whilst it might seem fair that parties would divide their assets 50/50, is that actually fair in practice? The party who has been the primary caregiver would likely have a lower earning capacity, fewer financial resources, fewer opportunities and less superannuation. Should they be penalised for a decision that both parties made for the benefit of their children, or should an adjustment be made to financially protect them against that loss of income and opportunity?
What about if the parties agree that one party continuing to be the primary caregiver is in the best interests of the children? Taking on this responsibility would mean that they’ll find it difficult to improve their financial position until after the children are grown (e.g. they could only take on part-time or casual work that they could fit around caring for the children, etc.). The primary breadwinner on the other hand, by virtue of their higher earning capacity, will often be able to get back on their feet faster.
The court considers all these circumstances, and more, when trying to decide what is a ‘just and equitable’ alteration of property interests.
It wouldn’t be uncommon for someone is Sam’s position to come away from the process feeling hard done by. In addition to bearing the majority of the costs in the immediate post-separation period, there was also an adjustment of the matrimonial assets in favour of the primary caregiver for their loss of opportunity/earning capacity/future earnings, etc. And this is where the idea comes from that men are being hard done by with respect to property settlements.
The point of this yarn is to illustrate that the reasons for the apparent differences in outcomes between men and women are not in based on gender at all.
As you read the example above, did you assume that Sam was a man?
Most people would. In our society it is common for the male partner to be the primary breadwinner and the female partner to be the primary caregiver. But that is not always the case. The Sam in the example might in fact be a Samantha and exactly the same legal principles would apply. Sam hasn’t gotten a raw deal because he’s male, instead the court will have made a complex consideration of the various financial and non-financial contributions, resources, earning capacities, future needs and future child-rearing requirements in each particular case.
So are men or women worse off after a divorce? It’s not actually about gender at all.
Generally the person who has the higher earning capacity will incur more costs in the immediate aftermath of the relationship breakdown but usually find they are more able to recover over the longer term. The person with the lower earning capacity, also usually the person who did (and/or will continue to do) most of the child-caring, may appear to walk away with a bit more from the settlement, but will generally be worse off in the long run as they have less ability to bounce back financially. Whether or not they are male or female is not a consideration.
Due to time constraints we’ve limited our analysis to property settlements. In a future instalment of our ‘Myth or Fact’ series we’ll consider the same question with respect to children’s matters.
