In a strange land

So nice to know that dinosaurs live here in Australia too, as well as back in New Zealand, ‘though I always suspected that would be the case. It’s when they get a public platform to spread the dinosaur word that I feel a little dismayed.

Today’s dinosaur offering? A retiring family court judge opining that in some cases, where one partner has made a special contribution (read: made lots of money) to a marriage, then if the marriage ends in divorce, the person who made the special contribution lots of money should get a greater share than the support partner.

THE legal notion that sports stars, artists and professionals with exceptional talent deserve better than a 50-50 split in divorce settlements is being watered down under pressure from the equal rights lobby, a top judge has warned.

Speaking before his retirement yesterday from the Family Court, judge Paul Guest said failing to take into account a husband or wife’s exceptional talent or skills in divorce settlements risked the “dumbing down of family law”.

Nice that he gives us the equal opportunity line, implying that it’s just as likely that it will be the wife who has the exceptional talent, but really, we all know just how gender differentiated the rewards for exceptional talent are likely to be.

Despite trying the “equal opportunity to be exceptionally rewarded for being born lucky” line, the two examples Justice Guest gives us are both male. (Do you think there might be something in that, m’lud.)

The tennis player:

But there comes a time when you have to look at other areas. If say, Pete Sampras’s divorce was coming through, is his wife entitled to half or did he make a special contribution?

And the geologist:

In that judgment, Justice Guest and another judge replaced the 65:35 division of a $36.7million asset pool with a decision to award 72.5:27.5 in favour of the husband, a geologist, who amassed considerable wealth through a series of business transactions.

The wife sought leave to appeal to the High Court, but her bid was dismissed.

Justice Guest told The Weekend Australian this week the husband “found a goldmine with his brains, his geological genius. He found the site. He put together the venture despite knockbacks. He got the finance. And he made a mine”.

“You’ve got to stand up for the doer, the one who tries, the person in the arena,” he said.

Well, gee, Mr Judge - did it ever occur to you that Pete Sampras’ chosen career, or indeed any sportsman’s chosen career, positively precludes his partner from doing anything other than tagging along behind. To be sure Mr Sampras has worked hard, trained daily, overcome the fear of failure, on a international stage, to become a top entertainer ( or sportsman, if you like, but really, they are just modern day gladiators, there to thrill the crowd). He was born with real talent, and he has applied the incredible effort needed to parlay that talent into a successful career. But the very nature of his job means that he must require any partner to allow his career to be the priority. His life-partner becomes very much the equal partner in his career, putting his career and his ambitions before her own, and as such, she should be entitled to an equal share of the rewards. That’s what partnership means.

As for the geologist, perhaps said geologist might never have been able to create the goldmine if he had not been able to rely on his wife to run the house, look after the children, do the washing, pay the bills, tuck the children into bed at night and reassure them that daddy really does love them but he just has to work late tonight / go on a business trip / make some important phonecalls / whatever and generally keep everything hanging together so that the geologist actually had the opportunity to make the mine. Moreover it’s certain that the wife would have shared in the financial disaster had the mine not eventuated; why then should she not share in the gains that came about through financial success.

Judge Guest takes refuge in the law. The 1975 Family Law Act (in Australia) says that:

In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and [some other stuff]

In English, what that means is that financial and non-financial contributions to a marriage shall be considered on their merits, whatever those are. And for Judge Guest, that means ’special talent’. It turns out that he has published a paper arguing that where one person has more natural talent than the other, then that person should get more on divorce. (PDF downloadable here - 56k) Mere money doesn’t amount to anything special, but natural skills and talent do. So on divorce, those born lucky get to stay lucky, while those who worked hard, in the background, to ensure that the lucky could develop their talent, don’t.

I suppose that it’s reasonable to point out that Judge Guest is, properly, reading and applying the law. That’s what judges are supposed to do, ‘though infamously, judges can make the law work to reflect their own views. However, by and large, if we want judges to start making different sorts of judgements, then we need to change the law. It seems to me that there is a case here for changing the law. When you invite someone to share your life, you invite them warts and all, and more importantly, you offer yourself, special talents and all. If it so happens that you earn a whacking great amount of money through your special talents, then that is part of what you bring to the marriage. And upon its dissolution, that’s what gets shared out. Of course, you get to keep your special talent - no one can take that off you. But in the period of your life when you were in a marriage, then whatever you earned through that special talent is part of the marriage. All the more so, if you could only deploy that special talent because your spouse supported you.