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The Division of Marital Assets Following Divorce

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Abstract:

In this paper, several possible bases for post-divorce asset division are examined from an economics-of-law perspective, focusing in particular on the incentives for opportunistic behaviour set up by the use of reliance, restitution, partnership, rehabilitation, and needs-based approaches. The current focus of marital law in England and Wales on a mixture of needs-based and contractual elements in divorce settlements is vulnerable to the charge that behaviour is encouraged in both males and females that is predatory in nature. The contractual uncertainty that follows from this may well deter some good quality marriages that might otherwise occur. The paper explores the case for using an expectations-damages approach, given that this can deter opportunistic divorce. The conclusions favour an updated and flexible view of the marriage contract. The paper draws extensively on the American literature covering property settlements.

Document Type: Research Article

DOI: http://dx.doi.org/10.1111/1467-6478.00095

Affiliations: University of Hertfordshire, Hertford SG13 8QF, England

Publication date: September 1, 1998

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