A Woman’s Work is Never…… Properly Quantified on Divorce?
There was a flurry of media comment recently about a judgment in a Chinese divorce case in which a Beijing divorce court ordered a man to compensate his wife for the housework she did during their marriage. According to the BBC’s account of the case, the husband, Mr Chen, had filed for divorce last year, after getting married in 2015. The wife, Ms Wang, was reluctant to divorce at first, but later requested financial compensation, arguing that Mr Chen had not shouldered any housework or childcare responsibilities for their son.
Beijing's Fangshan District Court ruled in her favour, ordering him to pay her monthly alimony of 2,000 yuan, as well as the one-off payment of 50,000 yuan for the housework she has done. That’s reported to be less than a nanny’s annual salary for one year. The ruling was made according to the new civil code in the country, which came into effect this year. Under the new law, a spouse is entitled to seek compensation in a divorce if he or she bears more responsibility in child raising, caring for elderly relatives, and assisting partners in their work.
Closer to home, this is an issue of fairness and equality, at an individual level and a policy level. In Scots family law, the question of how to value these types of non-financial contributions by a spouse arises most often in the context of divorce. The mechanism by which the Scottish court can be invited to recognise or compensate a divorcing spouse in this situation is by relying on s.9(1)(a) of the Family Law (Scotland) Act 1985. This provides for a departure from the presumption of equal sharing of matrimonial property where one party has derived an economic advantage from the contributions of the other and/or where one party has suffered an economic disadvantage in the interests of the other or of the family.
The leading case on the matter is often said to by Coyle v Coyle (2004 Fam LR 2) in which Mrs Coyle argued for a departure from equal sharing of the net matrimonial property based on s.9(1)(a). The background was that she had given up her career to look after the family and Mr Coyle had therefore been able to work long hours in his business, the value of which had increased and wasn’t included within the matrimonial property so Mrs Coyle didn’t have a claim on it (it was a family business which he’d acquired from earlier generations).
The most often quoted part of the judgment is from paragraph  where Lady Smith says “It is important to recognise that Parliament did not, in the 1985 Act, provide that whenever a couple divorce after a marriage in which one has been the breadwinner and one has been the homemaker, the latter must receive extra and compensatory financial provision on divorce.”
Read in isolation, that doesn’t seem to be fair. The implication that the breadwinner can leave the marriage with half of the matrimonial property and all of the earning capacity while the homemaker leaves with half of the matrimonial property and no earning capacity seems contrary to equality, especially in the Scottish context where awards of ongoing spousal support are rare and short-lived.
It has never seemed to me that this dictum represents the judgment as a whole, particularly if taken out of context as it so often is. Lady Smith divides s.9(1)(a) into its two separate elements. On the evidence the judgment doesn’t accept that Mr Coyle derived an economic advantage from Mrs Coyle’s efforts in managing the house and caring for the children because if she had not been doing so that would have been because she would have been pursuing her own career, earning a significant salary and thus bringing more income into the household, from which the cost of help could have been met. It therefore did not follow that Mr Coyle’s net financial position would have been any less by reason of the need to employ help.
On the question of the disadvantage sustained by Mrs Coyle in the interests of the family, Lady Smith’s analysis is different. There was the compelling evidence to the effect that Mrs Coyle was disadvantaged by giving up what was likely to have been a very successful career, to marry. On that basis, Lady Smith recognised that the principle enshrined in s.9[b] of the 1985 Act clearly applies in this case and reached the view that no further award should be made but only because of the way in which the sharing of the matrimonial property took place.
In practical terms, Mr Coyle’s share of the house was transferred to Mrs Coyle. It had been included in the calculation of net matrimonial property at its historic value of £135,000. However, by the time it was transferred to her, it was worth £250,000. That additional £115,000 was transferred to Mrs Coyle over and above her 50% share of the matrimonial property and it is said specifically to be awarded in recognition of her claims in terms of s.9(1)(b).
The judgment makes it explicit (at paragraph ) that if equalisation could only have been achieved by the awarding of a cash payment, then the court would certainly have ordered Mr Coyle to pay a further substantial cash sum. This would have been required to recognise the extent of the economic imbalance in this case: the husband had, as a result of his working life, an interest in a company and pension scheme which were clearly of substantial value, with the option of carrying on in business for a number of years into the future, all in addition to his share of the matrimonial property, some of which he had converted into valuable investments in heritable property while the wife had no qualifications, no job, no pension and, on the evidence, no realistic prospect of earning her living, and matters would have been rather different had she been able to pursue her career.
Is that adequate? Is it proper compensation? Does it achieve the fairness that is stated to be the aim of the 1985 Act? This matters in individual cases and it matters at a societal level (in that it affects women more than men both in terms of economics and social attitudes).
These are questions that have been asked by the Scottish Feminist Judgments Project. Its overarching question is “Is the law neutral, and does it serve us all equally?” Through this project legal academics and practitioners got together to re-write historical cases through a gendered lens. One of the cases rewritten by the project for the book is Coyle v Coyle.
The judgment is rewritten by Professor Jane Mair and the commentary is provided by Professor Gillian Black who places the rewritten judgment in its social and legal context, explaining what the feminist judgment does differently. The rewritten judgment [spoiler alert] awards the wife an additional capital sum equal to 25% of the value of the husband’s non-matrimonial business in recognition of the economic value of the wife’s caring and associated contributions.
If you’d like to listen to Professor Mair discussing Coyle, the Scottish approach to how domestic care within marriage could be valued and exploring the inherent tensions in feminist discourse towards the role of homemaker then you’ll find an engaging discussion in episode 3 of the SFJP podcast here.