E. Governments and Shared Parenting
I. Valuation of the Spouses’ Contributions
As mentioned, the common feature of the assets not subject to division is that the other spouse is presumed not to have contributed to the acquisition, and in some countries, the rationale for equal division is explicitly linked to the spouses’ contributions – financial or nonfinancial.7The ALI, however, rejects such a justification. The ALI is of the opinion that spouses often do not make equal financial contributions, and maintains that the factual premise of an equal-contribution rationale does not become more plausible by redefining contribution to include contributions of domestic as well as market labor. The drafters reason as follows:
Much of the spousal earnings during marriage are consumed, and only the surplus remaining is available for division at divorce. For domestic labors to contribute to that surplus, they must not only enhance the financial capacity of the other spouse or the value of marital property but do so by an amount that exceeds the consumption attributable to the spouse performing those labors. For domestic labors to contributeequally to that surplus would require, further, that this excess enhancement equal the excess of the higher-earning spouse’s income over that spouse’s consumption. Neither data nor intuition support such inferences.8
ThePrinciplesdo not explain in what way the domestic workers “enhance the financial capacity of the other spouse or the value of marital property.” The ALI simply states that the contribution of the stay-at-home spouse is lower, when consumption attributable to the spouses is deducted.9
A common way of looking at the spouses’ contribution is to take the value of each spouse’s labor as starting points, both labor inside and outside the home, and deduct consumption costs attributable to each spouse. The net results are then compared – they are regarded as each spouse’s contribution to the surplus available for division at divorce.
In such an account, the value of domestic work is often deemed lower than that of work outside the home – whether domestic work is valued in terms of services purchased in the market or according to payment by the hour. In my view, this “comparison model”
is not a realistic indicator of the domestic worker’s contributions to the wage earner’s
7For Norway,seeNOU (Official Norwegian Report) 1987: 30,79 (1987); Innst. O. Nr. 71, 14 (1990–91).
8Principles§ 4.09 cmt. c, at 735.
9Accordingly, the ALI maintains that it “makes far more sense to ground an equal-division presumption on the spouses’ contribution to the entire marital relationship, not just to the accumulation of financial assets.” One spouse may, for example, “have contributed more than the other in emotional stability, optimism or social skills, and thereby enriched the marital life.”Principles§ 4.09 cmt. c, at 735.
acquisition of marital property; the model rather indicates an account of the two spouses’
net input to this surplus. Thus, the model implies an idea of distributive justice, where the surplus is divided according to deserts. It is hard to tell whether such a comparison (intuitively) lies behind the drafters’ reasoning; however the two ways of reasoning have one common feature. They do not explain how the domestic worker has contributed to the wage earner’s acquisitions. In order to give such an explanation, an economic connection has to be established between the wage earner’s direct contribution to the surplus acquired during marriage and the housewife’s domestic labor. The only economic connection that is apparent is the factual assumption that the wife has enabled part of his work effort, and thus his income, by taking more than her share of domestic work. When a spouse covers more than his or her share of domestic work, and thus enables the other spouse to earn more or spend more money, and this enabled income is invested, an economic connection is established between domestic work and the other spouse’s acquisitions.10 When such an indirect contribution is acknowledged, it is taken for granted that a given quantity of work effort has to be done in the family. If one of the spouses performs less, the other must perform more. The valuation method proposed under this “contribution model” considers these efforts as dependent upon each other. This is a departure from the
“comparison model” which regards the spouses’ efforts as autonomous entities.
The question of recognizing indirect contribution in the form of domestic work or payment of current expenses has been raised in several European legal systems. The ques- tion comes to a head in countries where co-ownership during marriage is established on the basis of the parties’ contributions to the acquisition of the property. In England in the 1960s and 1970s, the question was raised whether a wife’s indirect contribution in the form of payments for consumption expenses or child care should give her a beneficial interest like co-ownership, in the family home formally owned by the husband. A broad doctrine acknowledging indirect contribution within the framework of a remedial constructive trust has not been adopted in English law, contrary to other common law jurisdictions, such as Canada and Australia.11Instead, in England, once a spouse or cohabitant has established some beneficial interest by making a direct contribution by paying off the loan, by making a deposit, or assuming mortgage liability, the quantification of that interest is determined by the whole range of conduct during the relationship – including indirect contributions in the form of consumption expenses and such.12Conceptually, the quantification of the beneficial interest is founded on inferred intention. Thus, in theory, the contribution is not decisive in itself, only its significance for the parties’ common understanding concerning the ownership of the property. In reality, however, as long as the threshold condition is satisfied, indirect contributions seem to be of great importance in determining rights of ownership in English law. Because division of property upon divorce is governed by other rules, this legal development is first and foremost of significance in relation to the spouses’
creditors and between unmarried cohabitants.
In 1975, the Norwegian Supreme Court went a step further. It acknowledged indirect contribution in the form of child care and housework, and made no distinction between entitlement and quantification. The Court ruled a wife who stays at home and minds small
10In this chapter the word “contribution” is employed in an economic sense. Two forms of contributions are described:
Direct contribution (by paying the purchase price of property, paying off the loan on a house, investing in stocks and so forth) and indirect contribution (domestic work and covering of consumption expenses).
11S. M.Cretney, J. M. Masson and R. Bailey-Harris, Principles of Family Law, 112–23 (7th ed.) (2002).
12Id.at 122–31.
children as coowner of the house purchased during the marriage by her husband with only his income earned during marriage.13This method of acquisition departs sharply from the traditional methods of acquiring co-ownership, as the justification is not linked to a
“common intention” requirement.14The rule has since been codified in the Marriage Act of 1991.15Co-ownership is based on what the parties contributed to the acquisition of the property, and a homemaker’s indirect contributions in the form of care for small children are sufficient in the majority of cases to make her an equal coowner of the family home or other items of common personal use bought by the husband with his income earned during marriage.16The fundamental thinking appears to be that if they had performed equal shares of work inside the home, the husband would have had to reduce his working hours – and earned less. On the other hand, the homemaker would have had free time for a paid job and thus would have made a direct contribution to the acquisition or made an indirect contribution in the form of covering more than her share of consumption expenses. It is worth noting that, under this “contribution model”, the spouses’ work efforts may be equal at any given moment, yet inequality is generated over time because one performance is consumed and the other is invested. Consequently, the homemaker need not perform extraordinarily to contribute equally to the surplus – an effort at a normal level will suffice.17
Both the ALI’s proposed valuation method and this method of acknowledging indirect contributions justify the valuation of nonmarket contributions with economic reasoning.18 One might think that consumption is not taken into account in the latter case, but that
13Norwegian Supreme Court Reports1975, p. 220. The house in question was acquired during the marriage and the husband held the title.Id.
14Even if the spouses have agreed to a separate property regime, this rule relating to the acquisition of property applies, as long as the spouses have not agreed upon who is to be deemed the owner of the particular items of property.
Norwegian Supreme Court Reports1403 (1980);Norwegian Supreme Court Reports,1269 (1982).
15Marriage Act 1991, Section 31, third paragraph. This rule applies not only to the family house, but also to other items of property for common personal use, e.g., a cabin, a car, or a boat, and holds good unless the spouses have expressly agreed upon who is to be considered the owner. Ownership is obtained regardless of title.
16The same principle is also applied judicially tounmarried cohabitation.See Norwegian Supreme Court Reports 1978, p. 1352 and 1984, p. 497. The Norwegian Supreme Court has also determined thatcreditorsmust respect co-ownership rights of this nature; cf.Norwegian Supreme Court Reports1978, p. 871. In Scandinavia, spouses have separate property during marriage, but an equal division takes place on divorce (deferred community property).
A similar course of legal development was in progress in the lower courts of Denmark and Sweden until the higher courts of these countries halted its development. It is understandable that this legal development took place in separate property regimes, where rights of ownership have some significance – mainly in relation to the spouses’
creditors. In community-property countries like Italy, Spain, and countries in Eastern Europe, co-ownership in property acquired during marriage is embedded in the marital property regimes.
17Experience from lower courts in Norway shows that legal practitioners do not always come to terms with the fact that an effort at normal level will suffice. The difficulties may stem from the fact that they are influenced by the use of causal reasoning in tort law, penal law, and contract law, cf. Hart and Honor´e who point out that “when causal language is used of the provision or failure to provide another with an opportunity, it is implied that this is a deviation from a standard practice or expected procedure”, H. L.A. Hart and T. Honor ´e,Causation in The Law60, (Oxford 1985). When measuring contribution, the purpose is quite different, namely to accredit a given amount or surplus to two cooperating parties.
18In the “Housewife Case,” discussed above, the husband, in addition to performing the work from which he derived his income, had built a part of the house himself in his spare time. The judge who was the first to vote stated that it was the wife’s housework and her caring for three small children “that has enabled the husband to devote so much work to building,”Norwegian Supreme Court Reports1975, p. 220, at p. 226. The legislative history of the new Marriage Act of 1991 state’s likewise that the homemaker’s co-ownership is based on “economic realities” and emphasize’s that no transfer of property occurs by declaring that the wife is a co-owner. The same text also states that “co-ownership is based on the contribution from each of the spouses that lies behind the acquisition.” cf. NOU (Official Norwegian Report) 1987: 30 p. 70–71.
is not so. Suppose the wife takes care of small children below compulsory school age and performs household chores. The husband is employed earning $40,000 per year after taxes.
From his income, he pays the family’s total expenses including principal payments on a mortgage, which constitute the “surplus” subject to division on divorce. The husband would have to reduce his working hours by one half, and consequently halve his income, if he were to take responsibility for his half of domestic work and child care, as the children are below school age and thus need round-the-clock care. We must presuppose that the children should have just as much contact with their parents in the comparative situation as follows. Given this premise, a wife has made half of his earnings possible. However, the total of this sum cannot be regarded as her yearly investments in the house. Part of this enabled income must also be deemed to have been spent on covering consumption expenses. In our case, it is reasonable to assume that the wife has contributed to one-half of the total consumption expenses and one-half of the total investment in the house. In other words, she has contributed on an equal footing to the surplus subject to division on divorce, as well as to the consumption expenses. The consumption attributable to the spouse performing domestic labor is thus taken into account.19
If the children are of compulsory school age and the wife still works full-time at home she will normally enable less than one-half his earnings. However, in modern marriages, women assume paid work after a shorter period at home, and they normally contribute directly to property acquisitions, or indirectly by covering consumption expenses.20Thus, in the great majority of marriages spouses could be regarded as equal contributors to the surplus created during marriage according to this “contribution model.”
One could argue that the husband would often have earned just as much even if she had not performed “his” share of the child care duties, instead he would have paid for a nanny or placed the children at the child care center, and therefore she does not facilitate half of his earnings. The question is whether or not one should presuppose that the children should have just as much total contact with their parents in the hypothetical posed. The question could be rephrased as to whether the homemaker has freed time or capital for the wage earner. In the first instance, she has enabled him to work more, and thus enhanced his
19However, the share of consumption expenses attributable to each spouse is open for debate; even if the spouses’
factual amount of consumption is more or less the same (this is taken as a premise in the following). Attributing one-half to each is unproblematic when the spouses’ real work efforts are equally large. But if the one’s work effort is greater than the other’s, two principles could guide the debiting of consumption expenses: either one can deduct half of the consumption expenses or one can deduct expenses proportionately, in proportion to the size of each of the spouses’ respective work efforts, that is according to ability. One also has to choose between the two methods when calculatingindirect contribution in the form of covering consumption expenses. The question that arises is when has the spouse paidmore than her shareof the family’s total consumption expenses? In these cases, the latter method of calculation (according to ability) better tracks the economic relationship between the spouses during marriage. The spouses must eat the same food, go on the same holidays, be responsible for their children’s expenses, and so forth.
In other words, they form a consumption unitand the one with the higher income will pull the total consumption expenses upward. Therefore, it may seem unreasonable if one-half the family’s total consumption expenses are to be debited against the spouse who has the lower income. On the other hand, they have in fact consumed one-half the material goods each. In every circumstance, if their income just cover the bare necessities, the one with the higher income will not pull the total consumption expenses upwards and the above argument fails, cf. T.Sverdrup, Stiftelse av sameie i ekteskap og ugift samliv(Co-ownership in Marriage and in Unmarried Cohabitation), Oslo, 1997, p. 394–98, and 422–24.
20It is interesting to note that Professor Katharine Silbaugh found that courts took inadequate account of “women’s most common labor pattern, a combination of paid and unpaid labor,” when interpreting the homemaker provision in the Uniform Marriage and Divorce Act.See, Katharine Silbaugh,Turning Labor into Love: Housework and the Law, 91Nw. U. L. Rev.1, 62, 63 (1996).
gross income; in the latter case, she has enhanced his net income disposable for investments by saving him the cost of (half) the child care, nanny, housekeeper, and so forth. Normally, the enabled income is lower when conceived of as freed capital rather than as freed time.
Whether this question is addressed one or the other way, the same deliberation takes place.
Consider first child care, the care of parents and others are not fully replaceable. The reason is not that one kind of child care is necessarily better than the other. A variety of opinions exists on this matter in the society, and the legal system should therefore take theparents’ choice of child care as a given starting point. Thus, the amount of contact between children and their parents should be kept constant in the comparative situation.21 A different result occurs with household chores; as such work can be substituted more easily by market services without significantly changing the character of the service. The housewife’s labor could therefore be regarded as freeing capital for the husband. However, if most of the household chores were to be substituted over a longer period of time, the distinctive character of that particular marriage would change substantially, and freeing of capital is no longer an obvious alternative.22
In the same way, it could be presupposed that the person working outside the home should have just as much spare time as in the hypothetical situation where work outside and inside the home is divided equally. Whether the contributions should be measured under such a premise, is a matter of opinion. As I see it, there may be good grounds to suggest such a premise – otherwise, a built-in welfare loss is present in the comparative situation. The purpose is not to find out what would most probably have happened in the alternative instance, but to trace the economic significance of domestic labor for the acquisition. If leisure is kept constant, one sees that a husband would have had to reduce his working hours if his wife had not performed some of “his” share of child care. From this point of view, she has made possible part of his earnings, and if these additional earnings result in investments or greater pension benefits, she has indirectly contributed thereto.
According to this “contribution model,” co-ownership during marriage as well as an equal division rule upon divorce could be justified with reference to the spouses’ indirect contributions, as they contribute on an equal footing in the great majority of marriages.
The rationale for property division upon divorce is significant in determining whether a certain allocation of property should be viewed as an entitlement or a charitable transfer.
The ALI maintains that if “the presumption of equal contribution were based on the factual assumption that the parties contributed equally to the property’s acquisition, then it would seem appropriate to allow its rebuttal with evidence of unequal contribution.”23 In my opinion, it is unproblematic to justify an equal division rule with reference to the parties’ contribution, and at the same time bar a rebuttal based on evidence of unequal contribution, as group data can establish equal contributions on the general level, but it is costly to prove this fact in the particular case. One exception could be made: Some argue that the housewife contributes less in cases where the husband has a very high salary and invests in property far above average, as explained more fully as follows with regard to
21This is also the position of the Norwegian Supreme Court. The Court speaks of the freeing of time and not of the freeing of capital where children are concerned,Norwegian Supreme Court Reports1975 p. 220, 1976 p. 694, 1980 p. 1403 and 1983 p. 1146.
22The Supreme Court has regarded household chores in both ways in these cases, cf.Norwegian Supreme Court Reports 1978 p. 1352 (both time and capital) and 1979 p. 1463 (time).
23Principles§ 4.09 cmt. c, at 735.