Why men should not be entitled to alimony

Source: Straits Times, 22 June 2009

By Andy Ho, Senior Writer

LAST year, some 3,266 women had to turn to the courts to get their alimony orders enforced. With divorces and annulments rising from 5,825 in 2002 to 7,220 last year, this problem can only get worse.

But why alimony at all? While providing child support and splitting assets acquired during a marriage make obvious sense, lawyers say that there is no coherent theory why the law should burden men with obligations to their ex-wives.

The reason usually given is that alimony represents remuneration for the woman’s uncompensated work of childcare and home-making. Eager perhaps to overcome this picture of male-providers and female-receivers, ex-Nominated Member of Parliament Kanwaljit Soin said at a recent forum that ‘maintenance should be on the basis of need and not on the basis of sex’. Men here can receive no alimony in the current law but Dr Kanwaljit argued that an ex-husband should be entitled to alimony if his ex-wife earned more than he did.

This view flows from a desire to ensure that wives are not subordinated to husbands. Couching the argument in terms of gender equality, proponents want marriage to be seen as a contract between two equal adults – or better yet, as a partnership of co-equals.

But can the notion of a contract really support the concept of alimony? If marriage were a contract, then alimony might be construed as damages awarded to the wronged spouse in case of adultery, cruelty or abandonment. But if that is so, why then does alimony cease when the ex-wife remarries?

Should she win big betting on a horse race today, the law does not require her to forsake alimony she was awarded yesterday. So why should remarriage, even to a wealthy man, acquit the ex-husband who breached the original contract? If alimony is damages, it should be paid willy nilly, whatever the circumstances.

Perhaps judges still think covertly in terms of coverture. This is the extinct law that, at marriage, the husband completely subsumes his wife’s person and property. If judges still assume that an ex-wife remains the ex-husband’s property until she remarries, perhaps courts might reason that it is only at remarriage, when she becomes the new husband’s property, that the ex-husband no longer has to provide for her. But Dr Kanwaljit took pains to emphasise that alimony is no longer grounded in coverture.

Perhaps alimony arises from the idea of restitution, the notion that a party to a contract should be protected when the other party unjustly enriches himself at her expense despite promising to do well for both of them. Foregoing an outside career for childcare and homemaking spells opportunity costs for the wife. At divorce, then, the wife should receive the future returns from her opportunity costs. Otherwise, the husband would have unjustly enriched himself at her expense.

But the trouble is the restitution remedy probably does not cover opportunity costs arising from relying on another party’s promises. For example, alimonies are usually determined so the ex-wife may continue living about as well as she did when she was married. But was a particular lifestyle specified at the start of the marriage?

This indicates how hard it is to delineate a marriage’s contractual terms post hoc. In the sphere of the personal and private, whatever is promised must necessarily remain ambiguous. To ascertain what precise promise was broken would thus be difficult. Assigning restitution in the form of alimony would inevitably be an arbitrary process. Judges would project their moral biases about divorce in the cases that come before them.

If marriage is not really a contract, could it be more akin to a business partnership instead? Spouses, in this model, can be considered to be co-equal partners, each contributing to the marital enterprise so that both can jointly acquire assets over its lifetime. Just as capital is returned to the partners when a business is wound up, there is a division of assets at divorce. And unfinished ‘works in progress’ – like child support, say – must be taken care of.

But partners in a business cannot dissolve their association willy nilly. If one is at fault, he or she has to pay a determinate amount of damages for wrongful dissolution – unlike indefinite alimony. Also the remaining partners can buy out the share of the partner in breach – a recourse that has no parallel in divorce. The partnership analogy, it turns out, is as inadequate as the contract model when applied to marriages.

Perhaps the primary reason both are inadequate is that because market valuations cannot encompass the interdependencies and complexities inherent in intimate family relationships. There are also social mores to consider – which, in the case of marriage, can exacerbate the ex-wife’s problems.

Some lawyers thus argue that marriage should be considered an unequal covenant in which women are disadvantaged. Not only does a woman’s sex appeal apparently wane faster with age than a man’s, she generally marries a man of the same age or older. Remarriage therefore becomes increasingly unlikely as she ages. That is not the case with men.

If marriage is a covenant that progressively disadvantages the woman, fairness would dictate that a divorced woman must be able to accrue the unrealised gains of her marriage. This is what justifies the institution of alimony.

And if this is the justification, a number of conclusions would follow:

One, the alimony should not be indefinite but last only in proportion to a marriage’s duration. A remarriage should not necessarily terminate it.

Two, the quantum of the alimony should fall over time as the gains of the marriage taper off and the ex-husband ages towards retirement.

And finally,because the social contexts of marriage are biased in favour of men, ex-husbands do not and should not get alimony, even if the wife earns more.

This is why Dr Kanwaljit’s egalitarian-sounding proposal should not stand.

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