Nearly five years ago I wrote a seminar paper about divorce as a potential moment of correction: an event where the state could step in and repair, at least partly, the gender inequalities in society. As part of the paper, I analysed multiple possible ways in which gender inequality could be worsened by marriage, or by an intimate committed relationship of shared responsibilities.
Writing this paper (and maybe some other events in life) led to a genuine anxiety at the thought of doing anything close to marriage to myself - specifically, making any step that could be interpreted as a legal obligation - and even more specifically, making any step towards uniting finances. It’s time, in favor of my emotional safety, to review and revise my argument from back then:
Should we consider macro-questions of gender inequality when evaluating a relationship between, well, only one of each gender (not to mention, also when the two are of the same)? How should we consider matters of inequality in a relationship? When is marriage not a relationship but an economic, or legal contract? And most importantly: have I learned anything since the idealistic and progressive years of my B.A?
The fine print of marriage
My original argument began from a straightforward concern: marriage is not just romance, and it is not just companionship. In an age where we don’t wait for marriage to move in together or to have sex, I wanted to understand marriage by searching for the “actual upgrades” seen in the life of a married couple; what actually changes in a married couples life.
While these "upgrades" are technically available to unmarried couples by choice, the legal framework of marital status formalizes and enforces these responsibilities
The main changes I found were “institutional”: tax breaks, mortgage help, and the right/duty to make medical decisions for your partner. You also inherit their debts, and you’re exempt from testifying against them in court. Of course, while these "upgrades" are technically available to unmarried couples by choice, the legal framework of marital status formalizes and enforces these responsibilities.
It is worth clarifying, of course, that obviously, marriage carries a meaning beyond its legal definition. Marriage possesses significance for the couple and the broader social and familial networks that surround them. What this significance is, I argue, seems appropriately open for ongoing public dialogue: how the community chooses to recognize and support the marital union.
As for the couple itself, the liberty to give meaning to their own marriage is, ideally, sufficiently flexible to express the needs and wishes of the partners in the relationship in creating a shared life. However, and here we face our first main challenge, this same liberty can also permit inadequacies to seep into the relationship, potentially escalating into precarious or even dangerous situations.
My Idealist Phase
My original approach to marriage and divorce focused on structural inequalities that disadvantage women even within couplehood. Evidence showed how women, just by being women, often enter relationships with less career mobility and lower earning potential. These inequalities, others argued, are frequently deepened by shared life: 50-50 expense divisions, career compromises, and the constant consideration and protection from risks of financial dependence. I argued that even when a wife earns more than her husband, she remains subject to structural amplifiers like the gender pay gap and the career impacts of childbirth.
Consequently, I believed the state must intervene to correct these imbalances. I viewed gender equality as a necessary point for public intervention - whether because state structures often exacerbate these inequalities, or simply because gender equality is a fair point to have on the list of pain points of society that require state-level intervention (not to say that it should necessarily be the top priority).
When choosing the state intervention, I looked into marriage and divorce because as mentioned, these are events in which the state is already, currently, involved. Marriage was ruled out as a candidate for intervention, because, well, it just wasn’t romantic enough. Though today I might disagree, at the time, my intuition was that the state should justifiably be reluctant to further intervene in the design of a marital union. As aforementioned, there currently is a liberty of letting couples design their shared life, including their compromises and shareload, by themselves. At the time, I saw this liberty as valuable.
Naturally, then, divorce was examined next. Unlike the liberty of self-design in marriage, divorce proceedings, especially those that occur in court, offer significantly less autonomy. At the very least, the couple's decisions are subject to the oversight of judges or state officials. This made divorce a good candidate for further intervention. Since the state already plays a heavy role in shaping the terms of the divorce, I thought, let’s put the gas and turn the courtroom into a place of justice - specifically, social justice.
Let’s put the gas and turn the courtroom into a place of justice - specifically, social justice.
I wanted the state to see divorce not just as a splitting of assets, but as a chance to compensate the person who had sacrificed their career or their earning power for the sake of this "shared life." The justification for the compensation, would therefore rely on the assumption that heterosexual relationships suffer from an “uneven balance” where the wife sacrifices more than the man.
Shared life beyond the ledger
Even now, some core part of the argument still feels true. The fact that a marriage is emotionally meaningful does not make unequal pay, unequal expectations, and unequal access to security disappear. If anything, it can make them harder to see. But I’ve come to realize the problems in using divorce as a tool "fix" these phenomena.
The fact that a marriage is emotionally meaningful does not make unequal pay, unequal expectations, and unequal access to security disappear.
The key shift I experienced stemmed from a renewed sense that there is an element of inequality within a couple’s life, which is an inherent and valid part of shared life. Theoretically, or perhaps, most practically, it is almost insane to expect that shared decisions in a couple’s life won’t have an element of compromise, and therefore, of inequality. We certainly should not expect every decision to be guided by considerations of equity, per se - but of fairness, and fulfillment, and prosperity of both partners.
To explain my point, I will demonstrate how equality isn’t the core of couplehood even where it easily could be: finances. Financial unity in marriage is never just about money or budget, but it’s about shared goals, expectations, and trust. I’ve found other thinkers that explicitly say: intimate life and economic activity are inseparable, and therefore, financial sharing is another component of defining what a couple’s relationship is all about.
It is almost insane to expect that shared decisions in a couple’s life won’t have an element of compromise, and therefore, of inequality
One could argue that all financial processes (expenditure, earnings, savings) should level out equally between the couple: 50-50 is the guiding rule of thumb. While this could work for some phases of a relationship, eventually, with a final merge of all finances in marriage, there is no legal meaning for “separation” between the contributions or expenditures of each side of the relationship. As I’ve mentioned previously marriage ties benefits and duties between husband and wife, regardless.
To clarify, this point goes beyond bank accounts. When a couple gets married, all accounts are not practically but theoretically unified, as the planning of the future life is united too. This is often explicitly backed up by financial advisors that call any attempts to keep finances separate within a marriage to be confused, at best, and dangerous, at worst.
“future needs” are not neutral either when women’s post-divorce prospects are constrained by lower wages and potentially interrupted careers
The challenge arises when courts take it upon themselves to untangle this shared life, including its finances, during divorce. It should be clarified - divorce distribution is currently not understood as a simple 50-50. Under frameworks such as the Uniform Marriage and Divorce Act of 1970, courts are encouraged to consider factors including the size of the marital estate, each spouse’s contribution to it, and the future needs of each party.
Given our reviewed claim of inseparability of finance and marital meaning, one should question if this framework isn’t too strictly financial. “Contribution,” for example, is not a neutral measure when women’s unpaid domestic and caregiving labor has often been systematically undervalued, and “future needs” are not neutral either when women’s post-divorce prospects are constrained by lower wages and potentially interrupted careers.
Ultimately, we must ask if asset distribution should reflect the "life plan" and career risks that we’re supposed to be supported by the relationship. Should the distribution of marital assets reflect the weight those assets carried within a now-terminated life plan? If the relationship supported the risk of the wife’s career, should the divorce ensure this risk is still covered? What if it supported the risk of the husband, and not of the wife?
The original proposed solution was to deepen the assessment of couples' particular circumstances, and develop some monetary metric of opportunity cost that can be redistributed through alimony from the husband to the wife. One of the suggestions was to use the national gender pay gap as a “savings gap” that must be reflected in alimony payments. Another idea was to project how the % of pay gap of the wife’s earnings could’ve been saved or invested, and represent those in the alimony. The next development was calculating the ratio between the gender inequality related losses and the higher-earning spouse’s potential future earnings, to establish a “fairer” compensatory value.
The obvious objection here is that the husband is paying for an inequality that he didn’t personally create in his particular relationship. Claiming that this will incentivize men to fix the general gender pay gap, is too far a reach and simply unlikely.
The next suggested alternative was that this added part of alimony payments could be provided by the state, instead of the husband. Have the taxpayers, society itself, pay for the gender inequality. One could even attempt to justify that only divorced women will receive this benefit, and not married or single women, relying on evidence revealing divorced women’s heightened vulnerability.
Though I appreciate my creativity, this is simply impractical in terms of public policy. Whether for redistribution or for compensation, the policy should attend to the pain point as directly as possible, to avoid both abuse of the power of the state and the emergence of twisted incentives leading to more unjust inequality.
Beyond the impracticality of my supposed solution, I have also come to see how attempting to quantify a shared life risks reducing it to a cold financial ledger is morally problematic. So much so, that even for an ongoing relationship, I have condoned such an approach.
However, I have also demonstrated that ignoring the couples past when making decisions about their separate futures feels morally inadequate. So where does this leave us?
Divorcing the Fix
I leave us not with a neat solution but a more precise way of seeing the tension for what it is, between two conclusions: 1) in the inner workings of a relationship, inequality is possible and even probable, and not problematic per se. 2) There currently exists an unjust gender inequality in society, which leaves women vulnerable to further harm.
In the inner workings of a relationship, inequality is possible and even probable, and not problematic per se
Our problem has become as follows: within the private life of a couple, public inequalities are considered and included in the life-plan only as much as the couple chooses to consider it. If and when we meet them at court for the divorce, do we respect the agreements they made, regardless of social inequalities? Even if we were to argue, once again, that gender inequality is dangerous enough to justify a patronical intervention of the state - is it too disruptive, or even inappropriate, to ask of the judiciary system? Am I expecting too much of the judiciary system by wanting it to consider more than just arguments that are actively brought to court?
Does moving the responsibility to the legislative system improve things? The court would then have laws that guide them to enforce necessary protections. What’s clear now is that the question wasn’t supposed to be about how to fix social inequality using particular instances. The question at heart of this conversation is that of liberalism and the extent of intervention which is legitimate.
The added pressure of having to protect myself from the “external”, social, known risks, even within the private experience of building a shared life with my partner.
What’s even more clear, is that this question of liberalism was never the one that left me with anxiety. The anxiety stemmed from this constant tension between the private and the public: the added pressure of having to protect myself from the “external”, social, known risks, even within the private experience of building a shared life with my partner.
