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The Division of Marital Assets Following Divorce
Author(s) -
Dnes W.
Publication year - 1998
Publication title -
journal of law and society
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.263
H-Index - 48
eISSN - 1467-6478
pISSN - 0263-323X
DOI - 10.1111/1467-6478.00095
Subject(s) - damages , restitution , asset (computer security) , liability , human settlement , perspective (graphical) , general partnership , incentive , quality (philosophy) , property (philosophy) , business , economics , law and economics , sociology , law , political science , microeconomics , geography , philosophy , computer security , epistemology , artificial intelligence , computer science , archaeology
In this paper, several possible bases for post‐divorce asset division are examined from an economics‐of‐law perspective, focusing in particular on the incentives for opportunistic behaviour set up by the use of reliance, restitution, partnership, rehabilitation, and needs‐based approaches. The current focus of marital law in England and Wales on a mixture of needs‐based and contractual elements in divorce settlements is vulnerable to the charge that behaviour is encouraged in both males and females that is predatory in nature. The contractual uncertainty that follows from this may well deter some good quality marriages that might otherwise occur. The paper explores the case for using an expectations‐damages approach, given that this can deter opportunistic divorce. The conclusions favour an updated and flexible view of the marriage contract. The paper draws extensively on the American literature covering property settlements.