Sunday, June 21, 2009

Marriage and alimony - Dr Soin's fallacy

Andy Ho wrote a half decent commentary of Kanwaljit Soin's recent rant to grant alimony for men. Not so sure I agree with him though. And certainly not with her that men and women are equal and that 'In this era, maintenance should be on the basis of need and not on the basis of sex.' (I think she meant gender.)

It is an important discussion, because it will help us come to terms with what the institution of marriage really is. This does have repercussions for the future, because the earning power of men and women will become less (although I think not for a long time more), and also when the same sex marriage people start pushing their agenda. Actually I am not to sure how much Dr Soin's push for 'gender equality' comes from her close association with AWARE and her ideas of a genderless marriage. This is certainly not advancing the cause of women, but reducing the approriate consideration of the gender based disadvantage that women have in the marriage relationship.

Marriage to my mind is, and will remain an equal partnership where the partners bring different assets and resources into the relationship and are intrinsically unequal. This cannot be denied. On one hand, women tend to marry up (yes, yes, there are exceptions, I know), they bring their womb and eggs and commit to being a mother
(and yes, of course there are exceptions!) and by and large, they tend to step down their ambitions and career advancements to look after the home. To this end they become more of a dependent than a provider. This is a reality, and in her push to advance the idea that women are as masculine as men, Dr Soin should not forget this.

But having come into the partnership as non-equals, marriage is an equalizer, and the partnership becomes an equal partnersip, where both have equal responsibilities for the family and child rearing (should there be children). Best of all, family wealth become equally shared.

Within the institution of marriage, there are three recognizable elements should a marriage dissolve:

a] sharing of conjugal property
b] mainenance of the wife as a dependent (in recognition of her dependent status during marriage)
c] continued shouldering of the parental roles, fiscally and functionally.

These are not gender equal, and it is right that the Women's Charter continue to protect the rights of women with respect to these issues. It is true that in some isolated situations, the roles may somehow be reversed, in part of in whole, and the courts should have some leeway in determining how to vary the outcomes accordingly. But these would be by far, the exception than the rule.

Dr Soin, in her attempt to be progressive should not quickly barter these away. Marriage is an equal partnership, but needs to recognize that the individual partners are not true equals.

Above all marriage is not genderless.


Puma said...

In the age of no-fault divorce, there is no place for alimony.

Check out these three essays, to see how alimony in a no-fault divorce regime is both illogical and unjust.

1. Don't Marry

2. (No-Fault)Marriage = Fraud

3. How Alimony Impacts Everyone Including Women

Now if you want to stay with the old Fault regime, fine let's keep all these 19th century insitutions together, and keep alimony. However you throw out the old regime, then you have to throw out alimony along with it.

gigamole said...

I would tend to agree with you that with a truly no-fault divorce there would be less requirement for an alimony, especially in a situation where both partners part in approximately the situation as when they married.

In reality though, I think in most marriages, the wife's financial and career prospects tend to be degraded as a consequence of the marriage and upon divorce, the wife leaves more disadvantaged compared to the husband. This is for various reasons. During the marriage, the wife's lifestyle is usually maintained by the husband's contributions while she goes about with her nesting and homemaking activities. If this is the case, regardless of the no-fault look of the divorce, I think the husband should provide alimony to approximately the degree he was maintaining her when they were married.

We also need to take into consideration the fact that many no-fault divorces only 'appear' no fault. Many couples take that route because it is the least publicly and socially damaging option. Often there is a 'fault' (often adultery) that leads to the breakup. Many wives are also pressurized into a no fault divorce.

I do realize I am engaging in a lot of speculative generalizations here. I am far from being an expert in domestic law and marital conflicts and am just approaching this from a very lay, common-sense perspective.

BTW, I haven't had time to read those urls you posted, I will try and do so soon.

Puma said...

So if Spouse A cheats, where Spouse B happens to be the higher-earner. Let's say they want to avoid a scandal like you mentioned, and get a No-Fault divorce to end the matter privately. Should the Spouse B owe alimony to the philandering/adultering Spouse A?

How would you like to be sentenced to a lifetime alimony judgement for a woman who has cheated on you? How does that serve any kind of social or personal justice?

gigamole said...


There are often times when one wishes for the wisdom of Solomon. But it's just me I am afraid.

The institution of marriage was never meant to go down this road, and when it does, everyone suffers, and often the kids pay the greatest price.

There is always the need to find some sort of emotional justice in the case of adultery. After all, the dishonesty needs to be 'punished' somehow. But it seems like 2 wrongs don't make a right. It seems to me (before my morning 'teh see'), that the justice that needs to be served when a marriage 'contract' breaks down needs to be kept separate from the emotional justice that needs be served when cheating occurs.

It might seem reasonable to somehow contra one against the other, but while the first is legally plain, the second is far more difficult to establish and apportion blame.

How do we dispense emotional justice here? I am not sure it can ever be done.

Puma said...

But I am not talking about emotional justice. I am talking about plain old State enforced justice with arrests, hand-cuffs, jail-time and everything. I am talking about people having their future freedoms taken away because they have been handed down alimony sentences, sometimes through no fault of their own (i.e. their spouse divorced them). Check out what happened to this formerly-respectable member of society:

gigamole said...

Fair 'nuff, but the case you cite actually show a rather irresponsible guy doesn't it? I think the courts saw through his sham helplessness, and his poor attempts to portray himself as a 'victim'.

Puma said...

Very well Doc. Let's hope neither of us ever find ourselves on the wrong-end of such a divorce.

Thank you for entertaining my comments, and allowing me to discuss on your Blog.


gigamole said...

hehe....yeah....well, I was at the end of one, but ended with reasonably balanced outcome. Cos I think we were really more concerned about protecting the kids. But others may not be so fortunate.

I think what we can hope for is for the law to retain some flexibility so that the courts can exercise some common sense in making their awards.

Nice chatting with you. Hope will continue to see you online in future.