Reducing Gender Asymmetries Due to Divorce

A jurist cannot but welcome an economic analysis of divorce that seeks to assess the scale of the “risk” resulting from separation and to determine how that risk can best be covered. The law has set up numerous provisions to more or less directly compensate for the economic consequences of divorce, including alimony, arrangements for setting and enforcing child support payments, equal division of property under a community property regime, parenting support tools and welfare provisions for lone-parent families and various back-to-work incentives for the spouse who has stopped work to raise one or more children.

While the study presented here reviews and comments on the effectiveness of these various measures, it will mainly be noted for highlighting the persistent gender asymmetry associated with separation, to the detriment of women, notably because they invest more in domestic work and childcare during the marriage and because after the divorce, in most cases, the children live with their mother.

This asymmetry extends well beyond the question of divorce, though it is particularly visible when divorce occurs. A more general question is how to restore gender equality at a time when women still perform most of the domestic and parenting tasks.

French law has tended to opt for a system of redistributive justice designed to compensate for the economic inequalities created by a gendered division of labour in the family. It is this redistributive justice that underlies the French community property regime, under which both partners’ earnings, wages and goods bought during the marriage go into a common pot. The same ideology explains why one factor taken into account when setting the alimony rate is the impact of the career choices made by a spouse during the marriage, or the choices made to favour the other spouse’s career to the detriment of their own (Article 271 of the French civil law code). We can be glad that there are measures to compensate for the inequalities resulting from women’s investment in family life. But that said, the ambivalence of these measures is widely highlighted. They may seem to favour women by giving them a degree of financial independence that enables them to divorce and, at the same time, to penalize women because, being merely compensatory, they perpetuate or mask women’s over-investment in the family compared to men (Pichard, 2014; Revillard, 2011). However, this kind of criticism necessarily leads to a dead end because taking domestic labour and childcare into account is a factor both for equity and for maintaining inequalities. This is a result of the purely compensatory principle adopted to cover the economic risks of divorce.

If redistributive reasoning leads to such a dead end, we need to look for other solutions. In this connection it would be interesting to use the work of the American philosopher Nancy Fraser who assesses the effectiveness of policies for achieving equality. The authors compare the efficacy of various public policies designed to foster equality. One such policy uses compensatory measures to eliminate the cost of the difference between men and women. The aim is to place a value upon the caregiver’s work by equitably rewarding their investment in the family. The limitation of this policy is that it provides no way of obliging men and women to share tasks equally. A genuinely egalitarian policy would give an incentive to share childcare equally. So as well as compensatory measures, we should give men incentives to take an equal share in domestic and parental work. “The key to achieving gender equity in a post-industrial welfare state, then, is to make women’s current life patterns the norm for everyone.” (Fraser, 2012, p. 186). This would involve a set of measures to change conceptions of men’s and women’s roles both at work and in the family. Examples might be parental leave and benefits paid equally to both parents on condition that they both spend the same amount of time with the children.

So there is a different way of thinking about the cost of divorce, wherein the existing system of resource redistribution, whether private or public...