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

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 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.