The above-mentioned question suggests that normatively financial orders should strive towards ensuring that parties have neither gained nor lost financially as a result of the relationship. This is premised on the assumption that financial orders in fact in the first place, can ensure parity between parties. This assumption is sought to be challenged through this blog post. Further, I contend that the question fails to capture the true essence of the foundation on which the pillars of financial order stand. Additionally, the question behind the façade of neutrality fails to identify and accordingly recognize the gendered dimension to these orders.

Through this blog, I would firstly, seek to investigate the reason and decipher the true objectives behind passing these orders. Secondly, I seek to highlight that the scope of financial orders itself is extremely limited through theory and restricted even further, through practice. Thus, it would be practically difficult for these orders to ensure that neither party has gained or lost, even if the normative argument is accepted. Thus, overall, I contend that financial orders neither can nor should seek to ensure financial fairness between parties in a relationship.

1. EXPLORING ‘BEHIND THE SCENES’: OBJECTIVES BEHIND PASSING FINANCIAL ORDERS

Financial orders have always been considered an aberration to the sanctity and genuineness of relationships. Jeske has argued that there are moral obligations that are cemented during the course of intimate familial relationships.[i] These obligations arise as a matter of commitment and significance towards an interpersonal relationship.[ii] However, such moral obligations do not take place in a vacuum but rather are financially devolved after the severance of a relationship.[iii] Thus, moral duty gets translated financially. It is imperative to probe behind the premise and explore the multi-faceted reasons behind the passage of these orders which seek to mechanically convert the ‘love and care’ into ‘money and numbers’.

Firstly, any relationship is premised on promises and agreements based on the roles which both parties assume. This argument is premised on viewing marriage as a ‘quasi-contract’ wherein the remedy of promissory estoppel is available for the breach of the contract.[iv] Thus, financial orders were cementing this promise with legal consequences i.e. the violation of a promise would entitle either party to receive ‘financial damages’.[v] This can be evidenced by the logical reasoning espoused in the Radmacher case,[vi] wherein marriage was conceptualised to be a contract and damages were allowed to be ‘justifiably accrued’ from either party.[vii] Secondly, these orders attempted to concretise the effort, time and work put in by either party in simply monetary terms after the breakdown of the relationship. These orders were seen to reward the work done by either parties throughout the course of their commitment towards each other, irrespective of which party. It was merely the work that was sought to be recognised and awarded. For example, in the seminal case of White v. White,[viii] the foundational argument for requesting financial orders was to merely ensure that the work done by the wife was recognised both towards the housework (by providing for the children) and towards the business (by providing for financial resources). Thirdly, these orders were passed to recognise and subsequently, promote ‘ethics of care’.[ix] Recognition of care became imperative as it ultimately ensured that its burden was discharged by either of the parties. For instance, if Party A in a relationship knew that the time spent doing household chores would be recognized, they would be much more likely to take it up in the first place. Thus, It was seen that if care-work was sought to be paid financially, it was likely to be cared for by the parties in the relationship. Hence, financial conversion made an excellent mechanism of encouragement for parties to take up care-work that subsequently, defined and re-imagined relationships and their worth in the society.

In response to these reasons, it is counter-argued that regulating care-work encompassing both childcare and housework end up robbing the activities of their true essence which usually comes from a place of genuine love, care and support.[x] A father does not stay all night in the hospital to care for his sick child, with the idea that he might get paid for that; or a mother does not cook delicious food every night after a long tiring day of work, hoping that she might get paid once she gets divorced. Additionally, financial orders seek to ensure that the pious institution of marriage is seen through an economic lens, denuding it to be the ‘sanctorium of personal relationships’.[xi] Furthermore, it is contended that financial orders are ‘negative instruments’ and cannot truly capture positive connotations such as love and care.[xii] For instance, how can you financially convert the amount of love a parent shows towards a child or the level of commitment of a husband towards household chores?

I argue that separating marriage and money on the grounds of it being a negative exercise or that it renders personal institutions, economically impersonal, are smoke-screens behind which those who have neither contributed to the relationship in any manner nor cared about the people in the relationship hide. The purposes behind the financial orders are rather straight-forward – recognise care-work, promote sharing the burden of work, and value the work already undertaken. Moreover, I acknowledge that it will be difficult to financially translate the amount and extent of work or commitment; however, I argue that this difficulty is only one-dimensional. Work ‘done’ might be difficult to financially translate, however, work ‘not done’ might be easier to identify and numerically quantify. The question warrants us to ensure that financial orders ensure fairness i.e. neither party loses or gains financially due to the relationship. I argue that financial orders in a way have ensured parity and fairness but through the effective lens of equality and equity. These orders seek to recognise the work done by all members in the relationship (thus, ensuring equality) and warrant equivalence to the work done, time spent, and effort put in by the parties (thus, ensuring equity).

Additionally, it is imperative to recognise that the position warranted by the question causes a severe impact on carers. Through the façade of neutrality, this question fails to identify the massive gendered impact and take responsibility for the consequences it seeks to gatekeep. Gordon-Bouvier in her theory of ‘relational vulnerability’ lucidly discerns the failure of law to regulate the myriad of disadvantages assumed by a singular party by taking on either prescribed gendered roles or mere caring responsibilities.[xiii] In majority of the heterosexual relationships, it is unfortunately known that women end up doing more household work – even in cases where they are doing a job similarly to their counterparts.[xiv] By taking the question to its logical extent, would ensure that the work done by these women are not only unrecognised for their time, effort, and commitment but also not awarded in any manner. It can be counter-argued that household work need not be rewarded as nothing is being meaningfully ‘lost’. However, I posit that women while choosing caring responsibilities, let go of major job opportunities – which might either be putting in some extra house or overtime or going to a conference to socialise.[xv] Hence, fairness thus warrants that financial orders ought to remedy the actual loss of work, financially recognise the work done, and even consider the opportunity cost of prioritising care work.

Lastly, I would like to symbolically address the spirit behind this question. Through my construction of the objectives behind financial orders, I highlight that there is neither a gain nor a loss that is taking place. Financial orders merely seek to provide for the commitment expressed and accordingly re-distribute wealth. Moreover, financial orders ought not to be seen as an instrument that furthers discrimination and one that warrants fairness. As evidenced by the resounding words in Miller v. Miller,[xvi] financial orders are not instruments that ‘take away’ from one party and ‘gives’ it to the other party. These orders seek to merely re-distribute the communion of marital property which has been painstakingly developed and cultivated.

1. FINANCIAL ORDERS: AN EMPTY VESSEL?

Despite the normative argument being answered in the negative, arguendo, even if financial orders should seek to ensure parity, they cannot achieve the same due to their manner and form. Hence, financial orders that seek parity would be practically impossible to design.

Firstly, these orders are only made after the breakdown of marriage.[xvii] This has led several to re-imagine financial orders as remedies that truly capture inter-generational inequalities during the course of marriage and not solely after its breakdown. With such a conceptual limitation, I argue that these orders are not the perfect instruments to act as a bulwark against any financial loss or gain faced by a party. Financial orders cannot ensure true parity and discharge such a higher burden since parties might lose or gain financially during the course of the marriage which these orders would not be able to remedy. Hence, there seems a missing link of consistency between the inherent form of a financial order and the objective of parity that it is seeking to achieve highlighting a practical impossibility.

Secondly, the role of the judiciary vis-à-vis financial orders must not be forgotten. In both the cases of White and Miller,[xviii] the Courts used qualified terms such as ‘reasonableness’, ‘needs’ or ‘wants’. By virtue of such qualifications, a judicial assessment of the facts in the given case becomes a must. Thus, I argue that financial orders by themselves would be unable to reach the objective sought after i.e. no financial gain or loss. As is evidenced by the trajectory of cases, the Courts are likely to evaluate and examine the loss and gain of parties during the relationship and use financial orders to remedy them. Irrespective of the normative ‘should’, the imperative role of the Courts in adjudicating orders makes the ‘could’ question also doubtful. Thus, the limitations on financial orders make the achievement of neither loss nor gain difficult due to their inherent form whose adjudication is further delegated to a judicial actor whose sole duty lies in effectuating principles such as equality and fairness.

To conclude, through this paper, I have sought to discuss both the theoretical difficulties and practical impossibilities of redesigning the objective of financial orders as financial parity. In the first part, I highlight the multifarious objectives that these orders seek to achieve and examine how parity can neither be accommodated within those reasons nor capture the essence behind those very reasons. Furthermore, I showcase that a positivist interpretation of the question would lead to non-identification of the massive gendered impact it has. Thus, through my construction of the true objectives of financial orders, I posit that when financial orders seek to ensure that those parties gain what they have lost financially; that is when both equality and equity co-exist. Additionally, in the second part, I argue that the inherent design of a financial order is as such which would be unable to encompass parity. The role of the Court to not only prevent discrimination but also promote fairness in order to achieve justice in its truest sense strikes hard at the question’s construction of what the financial orders should do. Moreover, the conceptual limitation of orders being passed solely after the breakdown of a relationship, cannot in any manner ensure that the parties do not lose out financially. Thus, the objective of financial orders must be re-imagined to recognize and accordingly reward the losses of parties in a relationship.

Endnotes

[i] Diane Jeske, ‘Moral and Legal Obligations to support Family’ in Elizabeth Brake & Lucinda Ferguson (eds.) Children’s & Family Law, 175 (2018).

[ii] Ibid at 177-180.

[iii] Gillan Douglas, Obligation and Commitment in Family Law, (2018).

[iv] Sharon Thompson, Prenuptial Agreements and the Presumption of Free Choice: Issues of Power in Theory and Practice 195 – 201 (Hart Publishing, 2015).

[v] Lucinda Ferguson, ‘Family, Social Inequalities, and the Persuasive Force of Interpersonal Obligation’, 22 (2008) International Journal of Law, Policy and the Family, 61-91.

[vi] Radmacher (formerly Granatino) v Granatino (Rev 4) [2010] UKSC 42

[vii] It is imperative to note that the Radmacher case was one that dealt with the legality of pre-nuptial agreements and not financial orders specifically. However, through this example, the author seeks to similarly conceptualise and drive home the argument of marriage being legally recognised as a quasi-contract.

[viii] White v. White [2000] UKHL 54; [2000] 3 WLR 1571

[ix] Eric Cave, Liberalism, Civil Marriage, and Amorous Caregiving Dyads (2019) Journal of Applied Philosophy, 50-72.

[x] Esther Dermott & Tim Fowler, What is a Family and Why does it matter?, (2020) 9 Social Sciences, 83.

[xi] Supra, see note 5.

[xii] Julie A. Wallbank, Shazia Choudhry & Jonathan Herring, ‘Public norms and private lives’ Rights, Gender, and Family Law, (Routledge; 2010) 76.

[xiii] Ellen Gordon-Bouvier, Relational Vulnerability: Economic, Psychological, Spatial in Relational Vulnerability, (Springer International Publishing; 2020) 51-79.

[xiv] Jonathan Herring, Why Financial Orders on Divorce Should be Unfair, (2005) 19 International Journal of Law, Policy and the Family, 218 – 228.

[xv] Craig Lind, Heather M. Keating & Jo Bridgeman,  ‘Feminist Fundamentalism at the Intersection of Government and Familial Responsibility for Children’,  Taking responsibility, law and the changing family, (Ashgate; 2011) 55.

[xvi] Miller v. Miller [2006] UKHL 24 (24 May 2006)

[xvii] Supra, see note 4.

[xviii] White v. White [2000] UKHL 54; [2000] 3 WLR 1571; Miller v. Miller [2006] UKHL 24 (24 May 2006)