Vardags Family Law Essay competition 2024/25 | Grace Stone

Grace Stone - London School of Economics and Political Science

How does feminist legal theory illuminate the way in which law perpetuates gendered power relations in the context of divorce proceedings, and how can it inform the development of legal reforms in this area?

Gendered power relations are premised on the idea of men holding more power and authority. These manifest in many areas of the law, particularly in family law decisions on financial proceedings in divorce. Whilst recent case law developments suggest equality, through court language and seemingly fair financial outcomes, feminist legal theory critiques this, examining how the law reinforces gender-related inequalities, and offering new insight through a feminist lens. Catherine MacKinnon, Anne Barlow, and Charlotte Bendall highlight the unfairness behind financial proceedings, pointing towards the lack of value for unpaid caregiving, and the limitation of taking a gender-neutral approach. This essay will analyse how the law allows for gendered power relations to continue, the feminist critiques of this, and possible reforms.

Before examining how feminist legal theory illuminates gendered power relations, it is necessary to look at the evolution of case law of financial proceedings in divorce. Historically, women were viewed solely as belonging within the home, entirely dependent on men. This resulted in unfair divorce outcomes, with women left struggling financially due to their caregiving role, whilst the men, as the primary earners, could retain all assets. Family law began to address these inequalities through a series of cases, placing women’s unpaid domestic work on a higher footing. White v White signalled a turning point, by introducing the ‘yardstick of equality,’ which allowed assets to be split 50/50.(1) This demonstrated a formal equality stance, treating both men and women alike, shown directly by Lord Nicholl stating, “there should be no bias in favour of the money-earner and against the homemaker and the child-carer.”(2) Whilst some view formal equality as sufficient, it inherently acts a barrier to true equality, as it merely raises women to the male standard, reinforcing men as the neutral.(3) A shift to substantive equality occurred in the later conjoined cases of McFarlane and Miller, with the court recognising caregiving women ‘suffer a disproportionate financial loss on the breakdown of a marriage because of their traditional role as homemaker and child-carer.’(4) They introduced the ‘relationship-generated disadvantage,’ acknowledging how one spouse may have sacrificed their career for family responsibilities, limiting their ability to live independently post-divorce.(5) This principle has continued into today’s law, as seen in RC v JC (2020), where a woman who sacrificed her legal career to raise her children was awarded an extra £400,000 for her relationship-generated disadvantage.(6) Overall, these cases demonstrate progress towards equality, yet under the surface flaws remain, and the judgements simply fall short.

A key issue is the repeated overlook of the intrinsic value of caregiving, which has therefore become the centre of feminist legal theory critiques, highlighting the gendered power relations at play. The current ‘relationship-generated disadvantage’ model, focusing on a woman’s lost earnings rather than the value of her hard work within the home, is a shortcoming. Unpaid caregiving does not receive enough recognition, including its physical efforts and the invisible “mental load” women carry.(7) Within the home, women can take on a multitude of roles - a teacher educating her children; a cook preparing 3 meals a day; and a cleaner maintaining the home, just to name a few. Despite this amount and range of work, it remains undervalued and unappreciated. Bendall argues we should instead be finding a way to place direct value on the home-making role instead of focusing on lost career opportunities.(8) The career-based approach places too much importance on the traditional masculine role of breadwinning, rather than remedying the caregiver’s position itself by giving it value.(9) Whilst compensating a woman for her lost earning potential may result in a generous sum of money, this ignores how work within the home also has high earning potential itself. Therefore, feminist legal theory highlights that, whilst the current compensation model provides a good basis for compensating caregivers beyond just their basic needs, this needs to be grounded in a fairer reasoning which truly values what caregivers do day-to-day. This may only marginally increase a woman’s compensation, or not even at all, but the reasoning itself can have an impact on later cases. As Rosemary Hunter states, introducing feminist reasoning is a way to ‘demonstrate a different way of thinking about the issues in the case; provide an opportunity for judges to debate and analyse the merits of alternative approaches to those issues; and potentially lay the groundwork for future legal development.’(10)

The second issue feminist legal theorists highlight within financial proceedings is the courts attempt at a gender-neutral approach. On its face, this places women and men on equal footing, however in reality it masks the social inequalities that continue.(11) This gender-neutral approach can be seen in cases such as Granatino v Radmacher, where the courts focussed on treating the couple as decontextualised contracting parties, rather than as a ‘husband’ and ‘wife.’(12) Charlotte Bendall has pointed out this approach has tended to fail in many cases, with judges slipping back to “heteronormative” language.(13) More importantly though, the aim of the courts to be gender-neutral here is problematic regardless. It is disproportionately women who take on caregiving roles, so therefore, as proposed by Catherine MacKinnon, the law must reflect this lived experience of women.(14) Other areas of law recognise the gendered reality, such as how rape legislation recognises gender dynamics.(15) Courts do not need to shy away from explicitly acknowledging the reality of women overwhelmingly being caregivers. It is true that men can be caregivers, however whilst it is still primarily women, recognition from the courts of this reality can help to alleviate the lack of value unpaid caregivers feel.

Through these feminist scholars bringing our attention to the perpetuation of gendered power relations, it is clear reform is needed. Reflecting on the two issues here, reform should either assign value to unpaid caregiving itself, or, as an alternative, introduce legislation to ensure that caregiving becomes a shared experience regardless of gender. Only in this second option would gender neutral language become acceptable within the court’s judgements, whereby men would become just as much caregivers as woman. Looking to the legislation reform option first, Anne Barlow provides an example, whereby in Spain, legislation denotes that caregiving is a duty to be shared between spouses, and financial penalties at divorce will apply if a gender-stereotypical approach has been stuck to.(16) This encourages men to share caregiving responsibilities, which can reshape future behaviour around domestic responsibilities. Nevertheless, the introduction of such legislation in the UK may be considered too radical, given that Parliament is male-dominated, and therefore may be reluctant to impose these obligations on men. Therefore, the more practical solution for the UK legal system would be to assign value to caregiving, specifically by compensating women in proportion to the salaries of their roles. For example, if a mother works within the home as a cleaner, a cook, a nurse, and a teacher, the amount she should be compensated with at divorce should reflect the total of these salaries. This would be the best solution within the UK system for three key reasons. First, it would not require the struggle of legislative change, as judges could adopt a change of approach themselves, just as they did from White v White to McFarlane and Miller. Second, compensation would be easily quantifiable for the courts, by totalling the average salaries across the number of years undertaken. Third, it addresses both key issues mentioned in this essay; the undervaluing of caregiving would be no longer, and the attempt at gender neutrality would become irrelevant, as caregiving would not be painted as a ‘woman’s role’ and instead treated as a standard job worthy of payment just as any other job is. Even if men were to increasingly take on caregiving roles, they would be equally entitled to this compensation. Overtime, this could challenge traditional gender norms by recognising the economic value of caregiving, regardless of the caregiver’s gender.

In practice, this reform would first require the court to identify the specific roles the caregiver takes on during the marriage. Courts tend to overlook this aspect, shown within the case of RC v JC – the wife is described as leaving her job to be a ‘hands-on mother,’ but there is no greater development of what this includes.(17) To contrast, the husband’s career is spoken about more, with the court saying he ‘deserves recognition and praise for his achievements.’(18) They also look at the wife’s work at the law firm and bank; however, they provide no details of her housework or homemaking, showing the lack of value they truly assign to it. After identifying the roles, the court would determine the average UK salary for them, before tallying the total amount, considering the weekly commitment to these roles, the number of years performed, and any shared caregiving responsibilities.

Whilst this approach is a significant improvement, concerns may remain over who would pay this compensation, as well as the issue of under or over-compensation. In most cases, the primary earner, typically the husband, provides the financial compensation, so this should remain unchanged. The issue that leads on from this is what happens if overcompensation occurs, whereby the partner cannot pay, or even under compensation, where the woman would be paid less than her lost earnings. Overcompensation is unlikely, which can be demonstrated with RC v JC by applying the reformed approach and comparing it to how much the wife was compensated at trial. She received £400,000 for four years lost earnings; £100,000 a year. Whilst the court failed to mention what home-making roles she took on, we can take a standard view of the role’s mothers tend to do, and their annual salaries; a cleaner (£16,387), a chef/cook (£21,403), a personal assistant managing the family calendar (£26,727), and a part time tutor helping her children with schooling (£35,767).(19) The total is approximately £100,284 earned per year, aligning closely with the courts award. Although only an estimate of the jobs she took on, this shows an example of comparable compensation. This method, whilst not varying the amount compensated, provides fairer and more validating reasoning. Furthermore, this means the issue of unaffordability from spouses becomes fruitless because it is the same amount they would be paying at trial, just with different reasoning underscoring it. It may be argued this method is only comparable for high earners, and ignores those working lower-salaried jobs, where compensation under this reform may exceed their lost earnings. However, if we turn to case law, it tends to only be in cases of high-income couples where relationship-generated disadvantage is argued by the parties, where they are missing a high paying salary. In lower-income cases, the principle is instead often subsumed within the broader assessment of needs and sharing, for example, by offering them ongoing maintenance costs or a larger share of family home, rather than a stand-alone figure for lost earnings. Turning to the argument of potential under-compensation for the caregivers, we must consider how this approach does not account for the irregular hours, emotional labour, and responsibilities of a mother that go beyond the scope of a regular job. Therefore, even if the average salary of their combined roles is lower than their lost earnings, the courts can take account for these extra factors to proportionately adjust the amount claimed.

To conclude, despite advancements in divorce law, gendered power relations persist. Feminist legal theory effectively critiques this and shows how the law, as it stands perpetuates this, through its inherent flawed reasoning and approach. This essay has shown that, while relationship-generated disadvantage provides some recognition of caregiving sacrifices, it falls short by not recognising the inherent value of the labour involved. Ultimately, adopting a feminist perspective is essential to create a fairer system of divorce, whether through the direct valuation of caregiving or a shift toward shared caregiving responsibilities.

For expert family law advice, click below for a free initial consultation with one of our solicitors.

BOOK FREE CONSULTATION

Bibliography

(1) White v White [2000] 3 WLR 1571

(2) Ibid [24]

(3) Catharine MacKinnon, Toward a Feminist Theory of the State (Harvard University Press 1989)

(4) Miller v Miller: McFarlane v McFarlane [2006] UKHL 24 [13]

(5) Ibid [140]

(6) RC v JC [2020] EWHC 466 (Fam)

(7) Emma, The Mental Load (Seven Stories Press 2018)

(8) Charlotte Bendall, ‘Some Are More “Equal” than Others: Heteronormativity in the Post-White Era of Financial Remedies’ (2014) 36 Journal of Social Welfare and Family Law 260

(9) Ibid

(10) Brenda Hale and others, Feminist Judgments: From Theory to Practice (Hart Publishing 2010) 33 33 .

(11) Davina Cooper, ‘Abolishing Legal Sex Status: The Challenge and Consequences of Gender Related Law Reform.’ (2022) https://www.kcl.ac.uk/law/research/future-of-legal-gender-abolishing-legal-sex-status-full-report.pdf

(12) Granatino v Radmacher [2010] UKSC 42

(13) Charlotte Bendall, ‘Some Are More “Equal” than Others: Heteronormativity in the Post-White Era of Financial Remedies’ (2014) 36 Journal of Social Welfare and Family Law 260

(14) Catharine MacKinnon, Toward a Feminist Theory of the State (Harvard University Press 1989)

(15) Sexual Offences Act 2003, s1

(16) Anne Barlow, ‘Configuration(S) of Unpaid Caregiving within Current Legal Discourse in and around the Family.’ (2007) 58 Northern Ireland Legal Quarterly

(17) RC v JC [2020] EWHC 466 (Fam) [6]

(18) Ibid [4]

(19) ‘UK Earnings Explorer - Office for National Statistics’ (www.ons.gov.uk) https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/earningsandworkinghours/articles/ukearningsexplorer/2019-08-16