Valorisation of household labour through relationships property law

1. Valorisation of household labour through relationships property law • Prof. Leon Verstappen

2. Introduction • Ideal world? • Tasks and roles in family

4. Introduction • Autonomy and solidarity • Just default system • Advice Commission on European Family Law: • participation in acquisitions • community of acquisitions • Deviation from the default system • ‘Cold exclusion’

5. Introduction • 4 questions: • Why should there be compensation for household labour? What is the justification? • When should there be compensation for household labour? • How should that compensation look like? • How can couples, judges and the legislator use property law to compensate for household labour?

6. The Netherlands

7. Research project ‘Cold exclusion’ • Modernisation of matrimonial property law • Research: On the nature and the dimension of financial problems and unfair situations that can occur upon dissolving formal and informal relations, especially when there is a considerable difference between the estates of the spouses.

8. Two problematic groups • Spouses with children who are caught in a poverty trap because of the marital contract entailing total separation of property. • Spouses who worked in the household or in the company of the other, without having received sufficient financial compensation for that work.

9. ‘Cold exclusion’ • Property regimes without compensatory mechanisms: • Married couples: marital contracts with‘cold exclusion’ • Cohabitants: almost no cohabitation contracts entailing participation in income or property • Average cohabitation contract = ‘Cold exclusion’

10. Problems and unfair effects • Mutation average income after divorce: • Woman - 21% • Man + 33% • Mutation average income after dissolution of a cohabitation: • Woman - 14% • Man + 23%

11. Backlog women • Care for children • Labour market and lack of earning capacity • No participation in property

12. Size of the problem • 1.500 women in formal relationships with a marital agreement providing for total separation of property • 20.000 informally cohabiting women.

13. Causes of the problems and unfair effects • Relationship-based reduction in earning capacity • Unequal property relationships

14. Justification legal intervetion • Total separation of property does lead to financial problems and unfair effects • Fair and equitable regulation for the property relations governed by a marital agreement

15. Legal instruments • Married couples: • Better advice • Statutory compensation for unpaid work • Discretional power of the judge to amend an unfair marital contract • Cohabitants: • Extrapolation rules for spouses • Maintenance

16. New legislation? • Letters from the State Secretary for Safety and Justice • No new legislation • Appeal to legal practice: • Use the existing tools; develop criteria • Hidden argument: • Fear for long lasting and expensive procedures on unfair marital contracts

17. Thank you for your attention