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Rehabilitating Partnership Marriage as a Theory of Wealth Distribution at Divorce: In Recognition of Shared Life


Alicia B. Kelly


Widener University - School of Law

January 1, 2004

Wisconsin Women's Law Journal, Vol. 19, 2004

Abstract:     
This article offers a critique, a reinvigoration and a reconstruction of partnership marriage theory, a theory that now, at least rhetorically, dominates modern divorce law. Although current constructions in law have distorted the model, I argue that the core substantive values embodied in the partnership marriage model continue to have considerable appeal as the basis for a system of wealth distribution at divorce. Perhaps the greatest virtue of this approach to marriage is that couples themselves commonly understand sharing and joint contribution as defining characteristics of marriage. Infused with an equality norm, partnership marriage also offers hope of advancing the status of women, both in terms of concrete economic outcomes and normatively. In particular, I argue that partnership marriage calls for equal treatment of home and market work. In addition, the theory more broadly recognizes and encourages sharing and commitment-values considered essential in marriage.

I advocate a reconstruction of the model. Contribution in marriage must be broadly understood in the sense that both spouses furnish a range of resources for the benefit of the marital relationship as a whole. Further, the law must recognize that sharing conduct in marriage plays a significant role in causing the respective economic positions the parties find themselves in at the end of the relationship. Collaborative conduct in marriage results in benefits and burdens that, at the brink of divorce, are possessed, but not rightly "owned" by the spouses individually. Partnership marriage calls for a presumption of equal division of traditional property and, in stark contrast to current interpretations, also requires income sharing for a period of time following divorce. Partnership thus provides a unified theoretical basis for all economic entitlements at divorce, bringing together spousal claims to "property" and "alimony" that modern law now artificially separates.

Number of Pages in PDF File: 69

Keywords: marriage, partnership marriage, property, marital property, domestic relations, family law, divorce, gender equality, gender, equality, women, law norms, economics

JEL Classification: K11

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Date posted: February 21, 2009 ; Last revised: February 24, 2009

Suggested Citation

Kelly, Alicia B., Rehabilitating Partnership Marriage as a Theory of Wealth Distribution at Divorce: In Recognition of Shared Life (January 1, 2004). Wisconsin Women's Law Journal, Vol. 19, 2004. Available at SSRN: http://ssrn.com/abstract=1345944

Contact Information

Alicia B. Kelly (Contact Author)
Widener University - School of Law ( email )
4601 Concord Pike
P.O. Box 7286
Wilmington, DE 19803-0474
United States
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