The breadwinner v the breadmaker – financial provision on divorce

A court in China dealing with a divorce recently ordered the man to compensate his soon to be ex-wife for housework/childcare she had undertaken during their marriage. The parties had been married for five years and the wife initially did not want to be divorced. However she later agreed but stated she should be compensated because during the marriage her husband had not shared any of the household tasks or childcare.

The court ordered that the woman should receive nearly £5500 for five years for work she had done, classed as ‘unpaid labour’. This is apparently a landmark case in China whereby women’s efforts during marriage in terms of running the household and maintaining the family may not have been previously recognised.

While this seems like an unusual ruling, would the same be applicable in Scotland?

Do divorcees in Scotland get compensation for ‘unpaid work’?

The law on financial provision on divorce is set out in the Family Law (Scotland) Act 1985 (the “1985 Act”). This states that on separation, matrimonial assets and liabilities should be divided fairly. The starting point is assets and liabilities should be divided equally but this can be departed from depending on parties’ specific circumstances.

Coming back to the decision of the Chinese court, the position is a court in Scotland would not make a specific financial award to compensate for unpaid work done by one spouse during marriage for the household or raising the family. It is difficult to see how this could even be quantified.

However S.9(1)(b) of the 1985 Act states that in deciding how matrimonial assets and liabilities should be distributed, account can be taken of any economic advantage derived by one spouse from the contributions of the other, and of any an economic disadvantage suffered by one spouse, in the interests of the other. Account can also be taken of the fact one spouse may have a greater economic burden of caring for a child of the marriage post-divorce.

These provisions can allow an unequal sharing of the matrimonial property. In practical terms, if a wife has essentially given up her career to raise the family and the husband has been able to continue with his career and develop this, then the wife could argue for a greater share of the net matrimonial assets to account for the fact that they have in effect sacrificed their career for the benefit of the family.

The thought is that if they are separating later in life, it will be much more difficult for them to get back into the workplace and to a stage which they might have been at, had they not married and effectively given up any career they may have had.

Unequal sharing of matrimonial assets

How unequal the sharing may be, however, is very much is looked at on a case-by-case basis. The courts would take into account many factors including the length of the marriage, whether there are children involved and how the matrimonial assets have been acquired e.g. have they been derived from assets owned prior to marriage or through inheritance. An unequal division of the net matrimonial assets is rare, especially above a 55%/45% split.

Therefore a court in Scotland will not quantify ‘unpaid work’ in the household completed by one spouse during marriage, and this is unlikely to change. However Courts do recognise that one party may be coming out of a marriage disadvantaged in terms of future career prospects, or with an ongoing burden of childcare and an unequal sharing of the net matrimonial assets could be possible in those circumstances.

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