The article is interesting in that it looks at the coverage of divorce costs from the standpoint of economic analysis of law, acknowledging from the outset that ideas about marriage have changed in recent decades, at least in the West, and considering the three institutions that can insure social risks – the state, the family and the market, as highlighted by Esping-Andersen. However, it does not seem to have achieved its goal. The authors write in terms of a kind of “average” legal framework combining elements borrowed at different moments from France, England and unidentified American states, mainly gleaned from economics articles published by authors from the countries in question at different times. Moreover, they only partly consider the question they raise in terms of the potential contributions of state, family and market, without gauging the full extent of the transformation of marriage, whose reality they nonetheless acknowledge.
Trying to argue in terms of a general body of divorce law embodied in combinations of functional equivalents leads the authors into error and confusion. Scottish private law is not the same as English private law; one cannot speak of the private law of the United Kingdom. There is no separate property system in the common law marital regimes of England or Germany. To the extent that one can talk about a marital property regime under English law, the existing system makes complete community of property mandatory, does not recognize separate property and allows community of property to be limited only under certain conditions, which are left to the discretion of the divorce judge. In Germany as in France, the legal system limits common property to assets acquired in common by the spouses (Zugewinngemeinschaft in German, acquêts in French). “Maintenance” (alimony), which is still at the heart of divorce law in countries that have inherited the English legal tradition, is not the functional equivalent of the prestation compensatoire (“compensatory allowance”) of French law, especially since the 2004 reform. A prenuptial agreement in those countries is not functionally equivalent to a French “marriage contract”. Divorce judges in the English law tradition can and sometimes do reject the prenuptial agreement if they think that upholding it would not enable the less well-off partner to maintain the standard of living they are entitled to, and especially if it might lead them into poverty. By contrast, only in exceptional circumstances can a French judge overturn a marriage contract; it is a rare and radical step. Thus a prenuptial agreement by no means provides the same certainty as a marriage contract.
How have the transformation of marriage over the past 50 years and factors that depend on the state, the family and the market come together in different countries?
The question of divorce costs arises because divorce has become common, and divorce is now common because the second half of the twentieth century saw a deep transformation in the moral and doctrinal foundations of the conjugal relationship. In a short space of time, people in the West have abandoned the concept, inherited from Catholicism, of the marriage bond as an indissoluble tie in which the exchange of vows at the moment of the celebration commits a person for life. In its place they have adopted a neo-Roman concept in which the conjugal relationship (marriage, consensual union or civil partnership) is based on affectio maritalis, i.e. continued mutual consent. We have shifted from the lifelong conjugal relationship to one that occupies one period in the life of each partner. At the same time, we have seen profound changes in relations between the sexes, in law and in daily life. Family law, and not only marital law, has been trying for half a century to adapt to the new ideas about the couple and relations between men and women, but, apart from the Scandinavian countries where the problem was tackled early on, we are still groping in the dark.
The promised economic analysis might have been instructive if it had really taken this change as its starting point. Instead, the article discusses the economic model of marriage as a system for maximizing domestic output by means of specialization, as if marriage could still be represented in this way when it is no longer based on the foundations that prevailed at the time the model was put forward. It is no longer realistic to think of the couple as a functional unit. The contemporary couple is destined to split up – partners enjoy their happiness while it lasts – and divorce is not an unpredictable catastrophe. A researcher who discusses the contemporary couple without starting from this principle is as unwise as lovers who delude themselves about the risks inherent in their relationship. The contemporary couple is a temporary association and it is more instructive to study it by modelling the relationship that binds the two protagonists than by talking about their specialization within a unit.
The article does enumerate preventive measures that each partner may take: personal savings, divorce insurance, remaining in paid work. But, surprisingly, it presents them without emphasizing the continuity solution. If the couple is viewed in this light, it is seen as an association of two units with a tension between them, not as a production unit in which the two partners’ interests merge. Moving from one conception of the couple to the other is a conceptual break, and it is this break that has created the object the authors are studying. It is hard to see how one can fail to focus on the difference.
That said, a critical examination of the model is called for. Individual savings will not help to cover the costs of divorce for the saver if, under the country’s legal system, they are included in the common property to be divided on divorce. And not all community property systems are equivalent. If such savings are not part of the assets to be shared out, they can be criticized because they reduce the amount to be shared and so widen the wealth gap between the spouses. Divorce insurance is presented as a realistic measure, but the article the authors cite on the subject concludes that it can never play a major part, the most obvious reason being, of course, the magnitude of the moral hazard. Being able to count on a pay-out from a divorce insurance policy when the law allows one spouse to apply for a divorce without citing a cause, is like a fire insurance policy that pays out if you set fire to your house. Continued employment by both partners for the duration of their union seems to be the only effective private measure, despite the practical difficulties (cost of childcare services, work-life balance), which vary from country to country.
The way the authors use the word “private” leads to some confusion. Provisions governing matrimonial regimes, the sharing of assets on divorce, alimony and child maintenance, and the degree to which the law recognizes agreements between the spouses, are all part of what is called private law, but it is still law: it is not the private individuals who decide but the legislator and the judge, two of the state’s three powers. As long as the legislators do not require couples in consensual unions to abide by the rules that govern marriage, de facto partners make their own decisions, for better or for worse, but spouses do not. The public policy provisions of private law are not private decisions. The distinction may pass unnoticed in a country where private law authorizes and respects marital property contracts, but in a country where, in practice, private law makes no provision for agreements between spouses, the distinction is crucial.
The roles of state, family and market under different legal systems
The state-family-market triad that Esping-Andersen has drawn attention to is used not so much to classify insurance instruments as to analyse how the elements specific to each of these institutions combine to form a welfare system in each country. It is particularly important to see these combinations clearly when considering the law. The three elements in Esping-Andersen’s original classification correspond to three traditions in private law in Europe. One is family-focused civil law, which has adopted from late Roman law the maintenance obligation between ascendants and descendants; one is English law, which is “liberal” in that it does everything possible to ensure that individuals do not become a burden on the community; and the third is Scandinavian law, which developed without undue influence from either Roman or canon law and which, between the marriage reform of the 1920s and the reform of welfare and family law in the 1970s, has done away with most maintenance obligations between related persons.
Examining coverage of divorce costs from the standpoint of these combinations might be a long process, but we can glimpse its usefulness by looking at two radically different European cases. In England, women are considered to be still disadvantaged in the world of work and in the division of tasks in the home, and efforts are made to remedy the consequences of this inequality while avoiding all forms of social redistribution. The redistribution is strictly between the divorcing spouses; all the couple’s assets are divided equally and alimony is paid to the less well-off party, until death if necessary. In Sweden, right from the 1930s, 40 years before J. Caldwell’s work, it was recognized that industrialization and urbanization created conditions that reduced fertility, and that the only way for couples to have the children they wanted was to reduce the direct and indirect costs by partly transferring them to the community. The Swedish welfare system was born of this economic analysis of fertility. Marital law had been reformed between 1920 and 1925 with a recognition that the law should not force unwilling couples to continue living together. From the 1950s, public services were developed to offer women stable, well-paid jobs that the private sector was not supplying in sufficient number: social policy fostered women’s economic independence. Parental leave is now designed to encourage fathers as much as mothers to stay at home with their new child, so reducing the time when the mother is not in paid work, and splitting between the two parents the impact of parental leave on careers and pensions. Social redistribution cuts divorce costs and reduces the inequality that may ensue: it is prevention rather than compensation.