26 Pages Posted: 17 Nov 2007
There has been considerable academic consideration of the adverse economic impact of divorce upon women in Canada. However, most of the attention has been focused on the manner in which the law has been interpreted by the courts. Yet less than 10 per cent of the all divorce settlements are decided in court. What is more, negotiated settlements reflect lower support than the courts likely would have ordered. To understand the unequal impact of the law on women, one must look at the conduct of negotiations. This article brings negotiations theory to bear on the analysis of why women might be disadvantaged in negotiations for spousal support within the framework established by Canada's divorce laws.
Rather than accept any inherent gender-based differences in negotiating ability or approach as an explanation, the article argues that the legal framework is structured in such a way as to systematically place the spousal support claimant at a disadvantage in negotiations for support. The argument is advanced by examining the structure of the negotiations from the perspective of prospect theory and other aspects of negotiation theory. The application of these theories suggests that the support claimant is placed in a position of real weakness relative to the respondent.
The claimant is likely to be less loss-averse, less concession-averse, and more risk-averse than the respondent. These characteristics by themselves have been demonstrated to be disadvantageous in negotiations. Moreover, the greater risk-aversion makes the support claimant more vulnerable to strategic behaviour and reduces the subjective value of her best alternatives to a negotiated agreement (BATNA). These systemic tendencies are caused by the extent to which support is characterized by the law as a redistribution of the respondent's income, at the sole discretion of the court, and then only if the claimant can prove need or a right to compensation, in combination with the vagueness of the provisions and the indeterminacy of the process.
Keywords: Negotiation theory, prospect theory, bargaining theory, game theory, family law, legislation, courts
JEL Classification: C70, D80, K10, K19
Suggested Citation: Suggested Citation
Martin, Craig, Unequal Shadows: Negotiation Theory and Spousal Support Under Canadian Divorce Law. University of Toronto Faculty of Law Review, Vol. 56, No. 1, 1998. Available at SSRN: https://ssrn.com/abstract=1030605