With around half of all marriages ending in divorce, we can no longer count on our relationships to last a lifetime. As women, we often sacrifice earning potential and career advancement for our caring responsibilities, which can leave us at a disadvantage in later life if our relationships end. As the number of single older women facing poverty and homelessness continues to grow, it is time we look at legal reforms to safeguard against the inequities inherent in our patriarchal society.
Case Study
Viral TikTok creator @itstime4me2fly has been documenting her divorce journey for the past year. A former stay-at-home wife and mother, her husband of thirty years suddenly left the marriage to be with his affair partner, leaving her emotionally devastated and facing an uncertain future.
The creator has not worked outside the home in decades, instead concentrating on raising their two children to adulthood and creating a comfortable and supportive home environment. This was a mutual decision, which allowed her former husband to focus on running his business.
While her husband has built up his business and earning potential throughout their marriage, @itstime4me2fly has sacrificed her career aspirations and income-earning capacity. Although managing a home and family requires a broad and varied skill set, this doesn’t count for much in the job market, and as a fifty-plus woman, her employment prospects are limited.
Since the separation, the creator’s husband has denied her access to their joint financial records and curtailed her access to funds. She is currently fighting it out in the court system, but as he is stymying her ability to pay the lawyers and delaying court proceedings, it remains to be seen whether she will receive her due. If her comments section is anything to go by, it seems that even if courts rule in a woman’s favour, getting a man to comply is another issue.
Futureproofing for Women
There is a tsunami of mature-age women online like @itstimeformetofly, who after a lifetime of prioritising their marriage and families, face poverty and even homelessness. It is well-documented that even women who work outside the home do the lion's share of domestic work and childcare, but this counts for little in a society that values the dollar above all else.
During a divorce, women are left to fight for what is rightfully theirs, but access to the legal system depends on the one resource they don’t have: money. Despite the legal requirement for husbands to provide funding for legal representation, in practice they can withhold, delay, and create insurmountable roadblocks, as demonstrated by the soon-to-be ex of @itstime4me2fly.
Just as men use prenuptial contracts to protect their financial assets in the event of a divorce, women need to take legal precautions to ensure their future financial safety. For that reason, we need to consider the concept of the female prenup, which considers the intangible yet vital contribution that women make to not only their marriages but to society in general.
Marriage is a Contract
As women, we are taught from a young age to focus on happiness and put our relationships first. We are taught that as long as there is love, it is possible to overcome any problems that arise and conquer any challenge.
Where marriages were once pragmatic arrangements, designed more for practicality and survival, the concept of a marriage based on romantic love is relatively new. We get so caught up in the fantasy that we forget that marriage is a legally binding contract and should be treated as such.
In following @itstime4me2fly, I have often thought that if people behaved in business the way they do in marriage, the penalties would be severe. Women invest their entire lives into their marriages and families, yet they have fewer rights than people who invest their money into a business. Just as one business partner can sue the other if important tenets of the contract are broken, so too women should be able to sue their husbands for breaking the rules of the marriage contract.
What’s The Damage?
In legal terms, damages can be awarded when another person causes harm or loss. In formulating a prenuptial contract, women may consider some of the below scenarios that could arise. This list of potential damages is not exhaustive but is a good starting point. Moreover, women should be able to sue for these damages retrospectively, regardless of having a prenuptial contract or not.
Punitive Damages are where the breach has occurred wilfully and maliciously. In the context of marriage, this could include a unilateral decision to end the marriage without prior warning or consultation.
Compensatory damages are for direct financial losses. These could include the family home, current and future income, and superannuation.
Consequential damages are about loss of reputation. In the context of marriage, this could include loss of social status, as well as alienation from friends, family, and community.
Pain and Suffering: This should include both physical and psychological injury resulting from the breach of the marriage contract. In this context, it could include physical violence, infidelity, and the emotional distress caused to offspring by the breakup.
Depreciation: In a society that values women for their youth and fertility, women should be able to sue for depreciation if their husband breaks the marriage contract. Factors including the number of children born and raised, years of marriage, and loss of physical attractiveness should be taken into consideration. The last one is a bit hard to take, I know, but let’s face it, it’s part of the deal.
A New Way Forward
Drawing up a contract to safeguard the future of women entering marriage will prove an interesting and daunting task. It will no doubt be pilloried by those whose interests are not served i.e., men, and I would expect to hear a lot of mansplaining about the myriad reasons why it wouldn’t work and why men would never agree to it.
To quote Mel Robbins, Let Them.
If you’ve ever been to a rock concert full of teenage girls, an office where someone brings in their newborn baby, or bore witness to the quiet resistance of the 4B movement, you’ll know how unstoppable women can be.
When we come to know our worth and refuse to settle for less, we will truly take back our power.
And then men better show up correct, or they won’t get a seat at our table.
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