Breadwinner bias in financial remedies on divorce

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This research will provide a feminist critique of the way in which courts divide property on divorce and how their approach reflects and contributes to gender bias in marriage.Research contextThe courts have wide discretion on divorce to divide capital assets and order maintenance payments to achieve a fair outcome. In White v White, the UK's highest court stressed that the courts must not discriminate between breadwinning and homemaking roles, and that assets should be divided equally unless there was a good reason not to. In the case of Miller, the court stressed that marriage is 'a partnership of equals' and that equality means 'an equal start on the road to independent living'. They emphasised that the three most important considerations in achieving a fair outcome are meeting needs, sharing the fruits of the marital partnership and 'compensating' a spouse for financial disadvantage suffered by making a career sacrifice for the family. In recent case law, only lip service has been paid to the principle of non-discrimination and the importance of non-financial contributions. Instead, judges have entrenched principles and practice that tend to favour the breadwinner. This further ingrains the wider societal issue of the undervaluing of reproductive labour, more likely provided by women, and reinforces the traditional family roles used in the dominant neoclassical economic model of the family. The courts' approach also leads to gender bias being reinforced in public perception by distorted press reports of divorce cases characterising wives who are seeking a fair share as 'gold diggers' seeking a 'meal ticket for life'.Research questions1. To what extent and in what ways are the courts biased in favour of breadwinners in their interpretation of fairness and quantification of awards?2. To what extent does any such breadwinner bias reflect and entrench existing gender bias in marriage?3. How can the law of financial remedies on divorce be reformed in order to contribute to the eradication of gender bias in marriage and the enhancement of social justice?MethodologyThis project will entail library-based research, with a close analysis of primary and secondary sources, informed by feminist critique. I will engage in qualitative analysis of the existing caselaw from the jurisdiction of England & Wales to identify themes underpinning departures from equal division. I will critically assess the High Court's use of its discretion as well as the narrative of marriage that is constructed through this jurisprudence. I will then review the academic literature on the gendered nature of marriage and draw on feminist theoretical frameworks to consider the extent to which any breadwinner bias in the case law perpetuates a wider gender bias. I will also examine press coverage of selected high-profile cases to analyse the prevalence of the 'gold digger' and 'meal ticket for life' tropes and the way in which such coverage informs societal perceptions of the way that the courts deal with more everyday cases and appropriate gender roles within marriage. This thesis has both academic and practical significance. By considering the judicial development of principles that structurally entrench male entitlement, and media reporting of the outcomes in such cases, this thesis will address the important and overlooked question of how financial remedies on divorce reflect and influence the gendered nature of marriage. Pressure is now building for legal reform which would further embed breadwinner bias. It is vital both practically and as a matter of principle to reinforce the importance of taking proper account of non-financial contributions to marriage. I seek to reorient the wider debate to include the overlooked question of the impact of financial remedies on divorce on social understandings of the gendered division of labour and privatisation of care in marriage.