Empirical research almost invariably finds that women and children are most adversely affected economically by divorce and separation. Because of the uneven distribution of childrearing tasks and wage inequalities in the labor market, women tend to bear the costs of failed marriages more heavily than men; and because women continue to bear a disproportionate share of childrearing tasks after divorce, those costs are passed onto the children. In addition, the parties' greatest asset is usually earning capacity rather than tangible assets, and it is also one to which the other party perhaps has the strongest claim; yet the law has only limited means to capture and redistribute this. Child support regimes, which seek to correct unfairness to children by guaranteeing children a portion of their parents' incomes, could be seen as a form of splitting future earning potential; and legislation splitting superannuation and pension entitlements is another, depending on how it is framed. Their effectiveness in achieving this aim is yet to be proven, however.
Many jurisdictions rely on a combination of the concepts of contribution and need in the distribution of assets on divorce. Under such regimes, the spouses' property is divided in accordance with their contributions to property and, more generally, to the family, and then adjusted in the light of disparities in their future needs. Sometimes need is the governing or dominant criterion. There are numerous variations on this theme, including regimes that apply presumptions of equal division only to property defined as marital as distinct from separate, before applying some form of needs-based adjustment. Yet there is a growing consensus that these conceptual tools are inadequate to explain or justify what is taking place (Ellman 1989; Brinig 2000). At the same time, most jurisdictions include provision for spousal maintenance, but evidence suggests that these powers are rarely used. For that reason, many couples are unable to divide what may be their most significant asset—namely, their future earning capacity.
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