Compensation for a Chinese Domestic Goddess
The world’s media has become very interested in reports of a Chinese housewife receiving compensation on a divorce for ‘housework’ she did during the marriage. It certainly seems to be a positive, and some would say progressive, change for Chinese spouses.
This is apparently the first award under a new civil code which came into force last month which gives a person the ability to seek compensation in a divorce if they are the primary carer for children or elderly parents, if they undertake most of the unpaid household tasks or if they assist partners in their work. The law previously meant that such an award could only be sought if the spouses had entered into a prenuptial agreement, which is uncommon in China.
In this case, the wife ‘Wang’ claimed that the husband ‘Chen’ went out to work for a salary but did not undertake any of the domestic chores at home, nor did he undertake any childcare responsibilities over five years of marriage. The Court in Beijing agreed that Wang was entitled to compensation and awarded her 50,000 yuan, just under £5,500, for her contributions to the marriage.
The outcome in this case has received heated debate on the world’s social media. Whilst it is a victory in the Courts for Wang and represents deserved recognition for spouses worldwide of their contributions to the home and family, the sum she received has been widely criticised as being inadequate.
It is clearly going to be difficult to estimate the value of contributions of a stay at home mum or dad. Is it even possible to put a monetary value on those contributions? Some have commented that the cost of a nanny in China costs around 50,000 yuan per year, so the compensation for five years of childcare plus the household chores for Wang does seem low by comparison. Others have also been quick to point out that many women give up their careers in order to raise children and support their husbands but are not able to claim compensation for that under current Chinese law.
Very little other facts of the Wang v Chen case have been publicised, so it is unclear how the award of compensation compares to other assets or Mr Chen’s earned income.
It therefore appears that the judgment is a welcome step in the right direction in Chinese law but many still feel that it does not go far enough and no doubt there will be future campaigns for the laws in China to go further when considering the respective contributions to a marriage.
How does the law in England and Wales compare?
The law in England and Wales on divorce is very different to China and has been so for more than 20 years. The most important landmark decision on the matter of equality and contributions is the case of White v White which was decided in 2000. This case did not say that there would always be a presumption of a 50/50 split, but increasingly, unless there are good reasons to depart from equality, the Court will look to put the parties in broadly equal positions.
The guidance in White v White was confirmed in the slightly later case of Miller and McFarlane. This case considered various legal principles but there were two key features. The first was an express right to compensation for a party who has sacrificed their career to look after the home/children and to play a support role to the other spouse in their career. Where there is a right to compensation, the home maker or primary carer of the children may have a right to share in the income of the earning spouse for the foreseeable future. The House of Lords also confirmed there should be no discrimination between the breadwinner and the homemaker, however long the marriage, and as a result there should be a fair division of the assets accrued during the marriage, whatever the spouses’ respective roles.
The position for the home maker in England or Wales then is much more positive than for a person with the same role in China. Like China, the concept of ‘compensation’ does exist but it does go much further as the law is clear that the homemaker cannot be discriminated against simply because they have not earned money in the same way as their spouse. This principle is now firmly established in English law, and any arguments put forward by spouses who seek to suggest that the non-earning spouse should not be treated equally will usually receive short shrift from the Courts.
The law here not only prevents discrimination against a homemaker but also supports the idea of income sharing into the future, via spousal maintenance, sometimes known as alimony. This is not something which applies in every country in the world and the law in England and Wales is largely seen as particularly generous in its maintenance awards. In particular, it is possible for a divorced spouse/civil partner in England and Wales to claim financial support for the rest of their life under the terms of a ‘joint lives’ maintenance order. In many other countries this concept either does not exist at all, or the length of time for which maintenance can be ordered is limited. It is however the case that joint lives maintenance awards are becoming less common and there is a move towards encouraging spouses to become financially independent after the divorce.
A homemaker spouse or civil partner in England and Wales is therefore likely to be treated more favourably by Courts here, and their contributions given greater value than on a divorce than they would in China or many other countries. In England and Wales, a homemaker spouse also has the ability to claim ongoing maintenance, potentially for many years to come. If Wang had been able to seek a divorce here then, depending on the other circumstances in the case, her award on the divorce is likely to have been higher than she received in China.
The law in England and Wales is particularly favourable to homemakers and the primary carers of children. As a result, many people in that role would favour divorcing here if they are able to do so and can meet certain criteria. One of the most important considerations on a divorce/dissolution of a civil partnership is to understand where best to start divorce proceedings, so any party in the position of home maker and who has a connection to England and Wales should seek legal advice as to whether they could potentially benefit from our generous divorce laws. This should be done at an early opportunity as case proceedings need to be issued here before the other party issues elsewhere – often known as a ‘jurisdiction race’.
The law has become further complicated by the changes to international law after Brexit, so it is important to seek advice from a solicitor who specialises in family law. Our team at Clarke Willmott all have experience of international law and can advise on issues relating to jurisdiction.