A Coherent Interpretation of Economic Compensation for Divorce: Taking Gender Equality as the Basis
GAO Lijie*
Abstract: Article 1088 of China’s Civil Code grants the right to seek economic compensation in divorce cases. However, significant confusion persists regarding the values, interpretations of doctrine, and legal techniques related to this compensation. Various viewpoints have emerged on the nature of compensation, including notions of household wages, human capital investment, moral obligation, and damages recovery. Concerning compensation standards, there are proposals such as the “humanitarian assistance” theory, “household wages” theory, “expected interest” theory, or “loss of interest” theory. By examining the evolution, legal principles, and practical applications of economic compensation for divorce from a human rights perspective, we aim to establish the legal foundation for this compensation, grounded in principles of gender equality. It clarifies that the compensation essentially confirms and restores individual development opportunities and the right to development in the context of gender inequality. This approach aims to provide a more coherent interpretation of clauses of economic compensation for divorce in terms of legal purposes, legal doctrines, and legal techniques, thus offering a more reasonable perspective to reconcile theoretical and practical discrepancies in economic compensation for divorce.
Keywords: Civil Code · economic compensation · human rights · gender equality
The right to claim financial compensation for divorce was first stipulated in Article 40 of the Marriage Law in 2001. However, after more than 20 years, the role of economic compensation in judicial practice is still limited, and the standards and means of compensation have been criticized for being too abstract, ambiguous, and difficult to implement.1 When it comes to legal theory, some scholars propose to determine the amount of compensation based on the value of household labor on the basis of the value of labor exchange;2 some scholars suggest that the community property system absorbs divorce compensation based on the attributes of the family as an ethical entity;3 based on the principles of equality and justice, some say that judges should exercise their discretion based on the losses suffered by one party and the benefits gained by the other party;4 and a more common situation involves multiple and sometimes conflicting legal doctrines that promote a balance between various types of relief, such as care, compensation, restitution, and assistance.5 Concerning compensation standards, there are proposals such as the relatively light “humanitarian assistance” theory, the medium “household wages” theory, and the strict “expected interest” theory, or “loss of interest” theory.
One important reason for this chaotic situation is that there are significant differences between academia and practice in the nature of housework, the value basis of compensation claims, the legal nature of compensation, compensation methods and techniques, etc. Specific interpretations and answers often neglect certain aspects and fail to be consistent. Besides, the divorce economic compensation clause in Article 1088 of the Civil Code, with the deletion of the preconditions for a separate property system stipulated in the Marriage Law, has led to a lower threshold for the application of this provision, and the request for economic compensation in judicial practice is bound to increase significantly. In this context, it is of great significance to find an interpretive approach that can unify the legal purpose, legal doctrine, and legal technique of economic compensation for divorce.
I. The Interpretation of Economic Justice and Its Limitations in Economic Compensation for Divorce
The interpretation of divorce compensation can be based on a concept of economic justice. This concept of economic justice advocates that household labor itself has value, but this value cannot be reflected in income, so it should be compensated based on justice. The economic compensation for divorce stipulated by countries such as Switzerland, Germany, and France reflects the interpretation approach of economic justice. To understand this interpretive approach, we must first start with the recognition of the value of household labor.
Karl Marx believed that initially, men and women had different comparative advantages due to physiological reasons, forming a “natural division of labor caused by physiological reasons”.6 Men worked outside to obtain food, while women stayed home to give birth and raise their offspring. It should be noted that the concepts of “nature” and “division of labor” mentioned by Marx in this context refer to the pre-commodity society and do not imply any discrimination against housework or the solidification of women’s roles. On the contrary, Marx believed that social labor outside the family and household labor within the family are both indispensable for the reproduction of the family and even humanity. The two are not comparable in terms of value evaluation. It is only the emergence of private ownership and commodities that have changed this situation, systematically devaluing women engaged in domestic labor and solidifying their identity and role.
In a social system that regards commodities as the basic economic unit and “element form”7, people have given two conflicting evaluation systems to objects and actions. One focuses on “use value”, that is, the subjective evaluation of the utility relationship between things and people; the other focuses on “exchange value”, that is, the objective evaluation of “the relationship or proportion of the amount of exchange between one use value and another use value.”8 The objectivity and comparability of exchange value make exchange possible. In a commodity society centered around “exchange”, the value becomes the exclusive appellation of “exchange value”, and the use value, which is the true basis of exchange value, is obscured.
Since social labor produces labor products — commodities — for exchange, while household labor only produces non-exchangeable labor products, social labor has value (exchange value) in a society based on private ownership of commodities, although both types of labor have “use value”. Since only social labor can produce value (exchange value), when the natural division of labor is evaluated using the evaluation system of “commodity’s two factors” in private society, the result is that “women’s housework pales in comparison with men’s labor for the means of living.”9 Under this evaluation system, social labor becomes “productive”, while household labor becomes “non-productive”. Productive labor seems to devalue, conceal, and enslave non-productive labor based on its “contribution”, forgetting that this labor only produces a fictitious “exchange value”.
Therefore, according to the views of Marx and Engels, household labor has value. Article 1088 of the Civil Code further relaxes the applicable conditions for the right to claim compensation for housework labor, which can also be regarded as further confirmation of the value of household labor.10 However, the problem lies in interpreting economic compensation for divorce based on economic justice. By affirming the value of household labor, it further advocates the restoration of the value of household labor and achieves “corrective justice” through economic compensation. This approach may raise doubts and difficulties in terms of value theory and legal doctrine.
The specific method of realizing the restoration of the value of household labor is to “calculate and evaluate the value of unpaid work outside the national accounts”11 and then convert it into the corresponding amount of economic compensation for divorce. However, recognizing the value (use value) of household labor does not mean recognizing the exchange value of household labor, and the two should not be confused. Simply confirming that housework has exchange value, advocating that housework should be endowed with exchange value in the form of “wage for housework”, and determining the compensation standard for housework based on the amount of “wage for housework” and the wage standards for similar domestic services at the time of divorce,12 such views have the following two problems:
A. The technical dilemma and value dilemma in evaluating household labor
Article 164(1) of the Swiss Civil Code: Family Law stipulates that “A spouse who does housework, takes care of children, or assists the other party in his or her profession or industry shall have the right to regularly receive from the other party a reasonable amount of property at his or her own disposal.”13 The provision actually establishes a household wage system based on separate property. Feminists believe that the household wage system somewhat corrects the economic inequality within families and contributes to alleviating gender inequality.14 However, the idea of restoring the value of household labor represented by “housework wages” has shortcomings in terms of both technology and value, and it is difficult to avoid them through revision.
First, the value of household labor is difficult to calculate. Household labor cannot be simply measured in terms of its value by domestic labor alone, as it is closely intertwined with its labor object, while the object of domestic labor possesses sociality, homogeneity, and substitutability, all of which are based on universal economic relations. In contrast, the subject-object relationship of household labor is based on emotional relationships that are private, heterogeneous, and irreplaceable. Therefore, “household labor is not only characterized by the intensity and quality of labor, but also involves the emotional and spiritual investment of family members”15 and cannot be reduced to household wages.
Second, valuing household labor may further solidify gender inequality and violate the original legislative intention of gender equality and the development trend of human rights concepts. Household wages make one party in the family become a participant in selling labor for wages, while the other party becomes the “decision-maker” who controls the living materials and dominates the family. Household wages may give one spouse power over the other, similar to the power an employer has over an employee. Therefore, “just as those who work for the benefit of others and are systematically exploited can define a class — workers, the sexuality of those who work for the use of others, and are systematically exploited can also define a gender — female.”16 Household wages may further solidify the existing gender inequality in a family, putting women in a dual oppressed position as both “workers” and “females”.
It is no accident that giving value to household labor is difficult in terms of both technology and value. In the view of Marxists, the opportunity for the real transformation of the status of household laborers (usually women, but feminists nowadays believe that women mostly refer to those with feminine qualities or status, not necessarily related to biological gender17) is not giving value to household labor, but the elimination of value (exchange value) itself, that is, “private housework becomes a social undertaking” by “turning the means of production into public ownership.”18 Theoretically, the fundamental way to address the negative evaluation of household labor lies in changing the form of ownership of the means of production and in political revolution (radical feminists also hold the same view19), rather than in forcibly assigning exchange value to household labor, which does not have exchange value in itself.
B. The community property system is not sensitive to the proportion of value contribution
Besides, as proposed by the economic justice interpretation, the concept of assigning value to household labor is not in line with the community property system prevalent in China. Unlike countries such as Germany, France, and Switzerland, which have separate property systems, China’s marriage legislation is based on the traditional and recognized concept of valuing the family and the independence of the family itself, and establishes the community property system as the legal system. In practice, Chinese people do recognize an ethical family rather than a contractual family. This ethical family is an ethical entity in the sense of Hegel. And as an entity, its property is also jointly owned by family members.20 Joint tenancy under the community property system is significantly distinct from separate ownership and proportional ownership. While it cannot be denied that both spouses’ contributions to the family are considered, joint tenancy is not particularly sensitive to the exact share of each spouse’s contribution. Even if one spouse contributes significantly more to the family than the other, both spouses should still be treated equally and fairly.
The joint tenancy of family wealth is manifested in both income and consumption. Under the system of community property, there is no such thing as individual income or individual consumption, but only family income and family consumption. Even if only one party in the marriage gains value, it should be considered value obtained by both parties. Similarly, even if only one party creates value in raising children, taking care of the elderly, and doing household chores, it should be considered a shared consuming value by both parties. Household labor directly contributes use value to the family, and this value is directly consumed without an intermediary. Social labor indirectly contributes use value to the family, and this value is converted into consumer goods such as food, clothing, housing, and transportation for consumption or storage after passing through the intermediary of income (currency).21 During divorce, the net value of family income and family consumption, which refers to the remaining assets (tangible or intangible) that have not been consumed, constitute the shared family wealth. If one party in a marriage cannot claim a share of the family wealth that exceeds the average due to significant contributions in terms of income value (such as obtaining all monetary income), the other party cannot claim a share of the family wealth that exceeds the average due to significant contributions in terms of consumption value (such as undertaking all household labor).
Therefore, under the premise of separate ownership of property, it is reasonable to provide economic compensation to the party who takes on more family obligations by affirming the social and economic value of household labor.22 However, it is difficult to justify this under the premise of community ownership. Under separate property ownership, due to the social tendency to devalue housework and underestimate its value during divorce,23 stipulating economic compensation on the grounds of economic justice is consistent with the separate property system sensitive to contribution ratios. However, in a community property system that is not sensitive to contribution proportions, relying solely on the value of household labor and emphasizing gender equality and equal household obligations cannot logically support a claim for divorce compensation.
One thing that must be clarified is that although the community property system has confirmed that the labor of domestic workers has value and confirmed their qualifications to participate in the division of community property, it does not mean that the relevant clauses of divorce compensation should be removed, nor does it mean that “the value and function of the economic compensation for divorce system should be demonstrated and realized by the improved system of community property in China.”24 Logically, the interpretation of economic justice is more compatible with separate ownership. However, Article 1088 of the Civil Code removed the premise of a separate property system stipulated in Article 40 of the previous Marriage Law, confirming that divorce economic compensation also applies under the community property system. As a result, the explanation of economic justice cannot coherently explain economic compensation under the community property system. Equal division of community property is what household laborers deserve, and divorce compensation, like economic assistance and damage compensation for divorce, is an additional relief beyond the share of community property that they deserve. Therefore, based on the interpretation of economic justice, the legal basis for advocating the right to economic compensation for divorce lies in economic equality, and the amount of compensation is linked to the value of household labor. In fact, this viewpoint creates an irreconcilable tension with the community property system, and a more reasonable and coherent interpretation must be found.
II. Improved Interpretation of Economic Justice and Its Limitations
The logical corollary of the interpretation of economic justice is: If the equal division of community property itself has achieved economic value justice, then economic compensation for divorce is not actually necessary. However, a critique of this conclusion has been raised by an improved interpretation of economic justice, which argues that the problem lies in determining community property statically without considering the formation of community property as a process. If one spouse’s household labor is regarded as a human capital investment in the other spouse, if the divorce happens before the other spouse’s human capital is cashed into community property, then the household labor as an investment cannot be reflected in the division of community property, which is obviously unfair.25 Accordingly, if the beneficiary spouse does not return the return that the other spouse should enjoy in the appreciation of its own human capital due to their investment in household labor, the household laborer can request a return based on “unjust enrichment”26 or compensation based on “unauthorized administration”.27
The above criticism is reasonable but mixes two different claims: “requesting equal division of common property” and “requesting additional compensation beyond the rightful share of community property”. “Whether the community property system confirms the value of household labor” and “Whether the community property of both spouses only refers to the material property shared in the divorce” are two different questions. Regarding the property that is generated after divorce but closely related to household labor during the marriage, “whether household laborers have the right to divide this part of property” and “whether household laborers have the right to receive additional compensation beyond an equal share of this part of property” are two different questions.
The judicial interpretation of community property actually reflects the affirmation of the first question. Article 24 of the Interpretation (I) of the Supreme People’s Court on the Application of the Book of Marriage and Family of the Civil Code of the People’s Republic of China defines “benefits of intellectual property” as property benefits that are actually obtained or can be clearly obtained during the existence of the marriage. The legislative trend of further improving the community property is already evident. The property income of human capital, such as academic qualifications, professional titles, and professional qualifications with time lag, will be regarded as intangible assets and included in the community property.28 In any case, these problems are essentially legislative technical issues that accurately define the scope of community property rather than legal issues.
The legislative purpose of compensating household labor is obviously to provide additional compensation to the spouse who assumes more obligations in the family, so as to promote the equal distribution of family obligations between husband and wife, and achieve gender equality and family justice.29 Otherwise, there would be no need to establish provisions for household labor compensation. However, the view that household labor is regarded as an investment of human capital does not provide a legal basis for additional compensation. If the claim that divorce compensation should be regarded as “unjust enrichment” or “unauthorized administration” is advocated, the scope of application of economic compensation for divorce will be very limited. Specifically, the beneficiary of household labor must have accumulated human capital during the duration of the marriage, such as obtaining a degree, a professional title, or professional qualifications. Conversely, if there is no significant development in the personal career and human capital of a spouse during the marriage, the household laborer cannot request additional economic compensation. This is unfair to household laborers who make the same sacrifices and expend the same effort, but whose partners have different career outcomes.
Hence, the objections mentioned above do not undermine the main conclusion of this paper, which is that the system of community property has recognized the significance of household labor. Although the community property system needs to be further improved to achieve real fair distribution, it is still necessary to find a more reasonable and coherent interpretation to request additional economic compensation besides the equal division of community property.
III. The Moral Sympathy Interpretation of Economic Compensation for Divorce and Its Failure
Article 40 of the revised Marriage Law of 2001 stipulates that “When a couple agrees in writing that each spouse shall own the property acquired during the marriage, and if one spouse has greater obligations in raising children, taking care of the elderly, assisting the other spouse in work, etc., he or she has the right to request compensation from the other spouse in the event of divorce, and the other spouse shall compensate him or her.” This is the first time that China has written economic compensation for divorce into law. At the time of legislation, one consideration was that the allocation of family obligations between men and women in China was still quite unequal (taking household chores as an example, according to the Third Social Status Survey of Chinese Women, the ratio of household chores time between urban men and women was 43:102, and in rural areas, it was 50:143, in minutes per day).30 Introducing economic compensation can encourage both spouses to distribute household chores more evenly to a certain extent. Meanwhile, the spouse engaged in household labor is generally the weaker side in the economic relationship between husband and wife, and may reduce their ability to make a living in society due to long-term household labor, or even lose this ability.
However, according to research based on the court in Chongqing City, among all the cases where economic compensation for divorce was requested, only 40% reached an agreement through mediation, while the remaining 60% were not supported by the court due to the failure of both parties to implement separate property.31 The research results show that the prerequisite of separate property is the biggest obstacle to implementing the right to claim economic compensation for divorce. Therefore, Article 1088 of the Civil Code confirms the continued application of the community property system for divorce compensation and deletes the prerequisite of a separate property system stipulated in Article 40 of the previous Marriage Law. The legislative intent is obviously to encourage divorce compensation claims by lowering the threshold of application, further promoting the equal distribution of family obligations, and protecting the weaker spouse in the family.
Therefore, it is reasonable to extract a humanitarian moral interpretation from the legislative changes in clauses on economic compensation for divorce, that is, to establish the value of this clause on the moral basis of “assisting the poor and helping the weak”. This concept has been confirmed in both the Marriage Law and the Civil Code: If one spouse is in a disadvantaged position, facing difficulties in life or even lacking the ability to support themselves, then an additional share beyond the equal distribution of community property can be claimed based on moral assistance. However, for obvious reasons, interpreting divorce compensation relief based on moral sympathy will lead to several problems.
First, this interpretation will encounter technical problems in legislation. Article 1090 of the Civil Code stipulates that “In the event of divorce, if one spouse is in financial difficulty, the other spouse with the ability to bear the burden should provide appropriate assistance.” The design of divorces for economic assistance takes into account the moral concept of “sympathy for the weak”, and if clauses for economic compensation for divorce are enacted based on the same reasons, it would be considered redundant legislation. In this way, the scientifically legislated approach is to absorb the economic compensation through the divorce assistance system.
Second, this interpretation cannot fully satisfy the value pursuit of legislation. Once divorce assistance and compensation are combined based on the moral concept of sympathy for the weak, it will reduce the intensity and scope of economic compensation and relief for divorce. On the one hand, obligations based on assistance are far weaker in terms of compulsion compared to those based on justice. Requesting economic compensation based on the value of household labor and the appreciation of human capital cannot support additional compensation, but this right to request is based on justice. From Anaximander’s proposition that justice is obedience to fate32 to Aristotle’s assertion that general justice is neither excessive nor deficient,33 the concept of justice has always been accompanied by a certain “prescriptiveness” and a reference and correspondence to the standard of this “prescriptiveness”. The adaptation of guilt and punishment and the reciprocity of rights and obligations in modern law obviously also reflect the clarity and strictness of justice. Therefore, compared with the obligations of sympathy and assistance, which are vague and should not set too high standards, the requirements of the obligation of justice are relatively clear, and its enforcement is relatively strong. Only when the economic compensation for the divorce system is based on the obligation of justice rather than the obligation of sympathy and assistance can it be clear in its application and can it meet the strict requirements of the legal system imposed by the evolving concepts of gender equality and human rights development. On the other hand, the applicable scenarios for the right to claim compensation based on the moral concept of sympathy and support for the weak will be extremely narrow. The term “the spouse experiencing difficulties in life” in divorce assistance clauses has a relatively clear definition, usually referring to absolute life difficulties caused by low labor capacity, disabilities, and other issues, rather than a relative decrease in living standards. Obviously, the one who does the housework in family life does not necessarily have an absolutely difficult life after divorce, especially now that the mainstream economic model of families is that both spouses have careers. If absolute living difficulties are taken as a prerequisite for compensating household labor, it will greatly limit the scope of application of this clause and not meet the legislative purpose of advocating fair sharing of family obligations. However, if absolute hardship is not a prerequisite, it is tantamount to demanding too much from “sympathetic assistance”. This is a dilemma that this interpretive approach cannot get rid of.
IV. Gender Equality Interpretation of Economic Compensation for Divorce
The theories of household wages and human capital can only advocate for the equal distribution of community property. The moral responsibility theory of “sympathetic assistance” can advocate additional compensation beyond equal distribution, but it can only advocate a weak obligation and weak enforcement, which is inconsistent with legislative intent. One approach is to examine the clauses on economic compensation for divorce from the perspective of human rights, based on the concept of gender equality, and in accordance with the principle that personal development opportunities and development rights should be gender equal, and to construct no-fault tort liability and property loss compensation involving a variety of specific legal interests. This approach fits well with the various elements of liability for infringement and also resolves many disputes regarding compensation standards. Furthermore, this interpretation can further clarify the confusion regarding the nature of compensation, and clearly establish the legal basis of economic compensation as the recognition and correction of unequal distribution or infringement of rights of household laborers. Interpreting economic compensation for divorce as an attempt to repair gender inequality in a series of specific rights and freedoms related to personal development opportunities under the concept of “gender equality” will help the economic compensation for divorce to finally achieve the full integration of legal purpose, legal doctrine and legal technique, so that the provision can be more scientific and self-consistent.
A. Damage facts and causal relationship: “housework punitive effects”
The heavy, tedious, mechanical, and repetitive household chores occupy the time that laborers could have spent on maintaining and developing their abilities, resulting in the degradation of their ability to make a living and take advantage of their resources. This is manifested as a stagnation of professional level and weakened social skills and social desires. Moreover, it also internalizes these negative impacts, causing various psychological damages to their confidence, self-esteem, self-evaluation, and self-identity. Some scholars summarize this phenomenon as the “housework punitive effects”.34
If the loss caused by the housework punishment effects is regarded as the cost of producing common marital property during the existence of the marriage, this is economically reasonable — of course, the punitive effects during the existence of the marriage are not only reflected in economic losses, but also in psychological damage. The issue of how to allocate household chores during the duration of marriage to reduce the punitive effects or share the punitive effects reasonably should not be solely resolved by the system of economic compensation for divorce. This system can only use “corrective justice” after divorce to urge the equal sharing of family obligations during the existence of the marriage, but it cannot replace the concept of equality during marriage and the system itself. This paper only focuses on the legitimacy basis of economic compensation and does not imply that the distribution of family obligations featuring “males in charge of external work and females in charge of household chores” is legitimate. So, the real problem is that the punitive effects cause unjust losses to continue after the end of the marital relationship and be borne solely by the household laborer.
B. Illegality: the unequal distribution of housework and the facts of oppression35
Article 1041 of the Civil Code stipulates that “China implements a marriage system based on the principles of freedom of marriage, monogamy, and equality between men and women. The lawful rights and interests of women, minors, the elderly, and persons with disabilities are protected.” Thus, the fact that one of the spouses undertakes too much household labor violates the basic principle of equality of family status, while at the same time deliberately or unintentionally imposing an oppressive “male culture” and “male politics” on women (or feminines), which is manifested as a violation of a series of specific rights and freedoms covered by the principle of “individual development opportunities and development rights should be gender equal.” Specifically, full-time engagement in household labor violates the right to work and freedom of occupation; and a large amount of household labor after work may infringe upon the rights to rest, education, and health, as well as opportunities and freedom for personal development. Some people may raise objections, arguing that the spouse’s social work performing household chores may also be heavy, dangerous, and even cause damage to the body, so the damage caused by household chores should not be compensated. However, the difference between the two types of damage is very clear: Damage caused by social labor is an optional expenditure, and social laborers have a certain degree of choice. The damage is related to the will of the laborers, and the laborers bear a greater responsibility for this harm. On the other hand, damage caused by household labor is a necessary expenditure independent of personal will. Laborers themselves should not be responsible for the damage.
C. Fault: compensation for household labor damage can be attributed to nonfault tort liability in legal theory
The damage caused by household labor to one or both spouses in a marriage does not necessarily stem from the fault of one or both spouses. Therefore, economic compensation for divorce can be distinguished from economic indemnity for divorce. In family life, spouses cooperate, collaborate, and share risks. It is not necessarily the result of the malice and fault of the other spouse, nor the fault of the household laborer, that the spouse engages in household labor and pays the corresponding damage costs.But no-fault does not mean no responsibility. From the perspective of fairness, economic compensation for divorce should be regarded as a special tort liability.
D. Important rebuttal to the interpretation of tort liability: autonomy of will
The interpretation of the tort liability for economic compensation for divorce may encounter an important opposition, which argues that even if there is damage due to household chores, it is the result of the autonomy of will of both spouses and, therefore, cannot be regarded as tort liability. But this view itself is a one-sided understanding of the expression of will. Even if we do not discuss the question of whether the autonomy of will is fundamentally possible in the context of postmodern feminism, that is, the problem of “aphasia” and “distortion” of the expression of will caused by the systematic oppression of the spouse engaged in housework under “male politics” and “male culture”. Even if it is assumed that the household laborer sincerely expresses their willingness to undertake the household labor and to bear the corresponding damage, autonomy of will cannot counter the claim for compensation. The reason is that there are similarities between husband and wife living together and company management. It is impossible to require participants to express their will and consent in everything.36 If one nitpicks, any form of cooperation will be difficult to proceed smoothly.
The essence of the problem lies in the multidimensionality of individual expressions of will. The similarity between cohabitation and company management is that individuals often “exercise public rationality for the sake of cooperative interests” rather than “exercising personal rationality for the sake of personal interests.”37 The division of household labor is actually based on the concept of “public rationality” rather than “personal rationality”. The two expressions of will often differ, but coincide only occasionally. Just as being responsible for personal preferences when eating, but considering the enjoyment of guests at the dinner table when hosting a meal, the expression of will based on cooperation is obviously a conditional expression of will, and it is valid only during the period of cooperation. However, the damage lasts until after the end of cooperation. At this time, the reason for acting in accordance with public reason no longer exists. Of course, logically, only the expression of personal reason shall prevail.
V. Defining Infringement Helps Clarify Difficulties in Judicial Practice of Economic Compensation for Divorce
By interpreting the clause on economic compensation for divorce through a human rights lens, the legal basis for economic compensation is defined as a non-fault tortious act. This approach can effectively address numerous difficulties in judicial practice.
A. Clarifying the applicable subjects of economic compensation for divorce
Article 1088 of the Civil Code stipulates the right to claim economic compensation for divorce, which is asserted by one spouse to the other during divorce. The subject of this right to claim is both spouses. However, some scholars believe that there is a large number of “elderly laborers” in China who engage in various household labor in the home of the younger generation. The value of their labor should also be recognized. So, parents who engage in household chores for adult children also have the right to request compensation for household labor.38 However, from the perspective of tort liability, the essence of the right to claim economic compensation for divorce is a special claim for damages caused by non-fault tort by both spouses. Therefore, elderly people cannot claim economic compensation for divorce based on another legal relationship outside of the marital relationship, namely the labor relationship between the elderly and the younger family members. Whether and how elderly people can request economic compensation is another question, and this question is actually not necessarily related to divorce.
B. Clarifying the applicable period of economic compensation for divorce
The main controversy in the academic community regarding the applicable period is whether economic compensation can be claimed during the period of the marriage. Some scholars believe that China’s system for economic compensation for divorce should learn from some countries with separate property systems and take the right to request economic compensation during the marriage as the direction for improving the marriage economic compensation system in the future.39 The tort liability theory of economic compensation for divorce believes this argument is untenable. The losses incurred by household laborers during the existence of the marriage relationship are clearly regarded as the cost and expenditure of shared life, and logically, there cannot be a compensation issue. This position complements China’s system of community property. Therefore, the request for economic compensation for divorce can only be made at the time of divorce.
C. Clarifying the legal application procedures for economic compensation for divorce
Considering economic compensation for divorce as compensation for a specific infringement allows for the reasonable application of relevant legal procedures for tort liability. Currently, there are still many controversies regarding the legal procedures for economic compensation for divorce. Taking the limitation of action as an example, some scholars believe that the law stipulates that only the spouse who undertakes more family obligations has the right to make a request at the time of divorce, which is inconsistent with protecting women and promoting family equality.40 However, there is insufficient evidence to support the claim of extending the limitation of action. Which law should be referred to? Is it Article 27 of the Interpretation of the Supreme People’s Court on the Application of the Marriage Law of the People’s Republic of China (II), stipulating a one-year limitation of action for economic compensation for divorce? Or is it the three-year general limitation of action stipulated in the Civil Code? Or is it Article 90 of the Interpretation of the Supreme People’s Court on the Application of the Book of Marriage and Family of the Civil Code of the People’s Republic of China (I), which states that unless the parties explicitly waive it, economic compensation for divorce can be claimed at any time? The answer is very clear from the perspective of the tort liability theory of economic compensation for divorce. Since they both belong to tort liability, the limitation of action for divorce compensation litigation should refer to Article 90 of the Interpretation of the Supreme People’s Court on the Application of the Book of Marriage and Family of the Civil Code of the People’s Republic of China (I).
D. Clarifying the amount standard for economic compensation for divorce
First and foremost, it should be clear that the damage caused by household labor, in terms of the violation of human rights and interests resulting from the unequal distribution of household labor, is neither a direct nor an indirect loss in reality, but a foreseeable direct loss. The damage compensation stipulated in China’s civil law generally does not involve indirect losses, only direct ones, including actual losses and foreseeable losses. The losses caused by the family division of labor to household laborers can be divided into two parts. The first part is the actual loss caused by household labor, such as the loss of hourly or piece-rate wages due to household labor. This part of the loss is usually considered a loss of community property and is not included in divorce compensation. Another part is the foreseeable loss caused by household labor, such as the loss of expected interest due to resignation caused by childbirth and breastfeeding. Although this part of interest is not an actual loss that has occurred, it is undoubtedly a loss that should have been foreseen when making the decision. The difference between the benefits and the remuneration obtained from work after divorce should also be foreseeable. This part of the expected interest can be the reference for compensation. Currently, legislation in the United States and Germany clearly stipulates the support system for a certain period of time after divorce, aimed at restoring women’s ability to work.41 This is actually based on foreseeable direct losses.
Furthermore, the standard for the amount of compensation should be clearly defined, which is also the most controversial part of divorce compensation requests in judicial practice. From the perspective of compensation philosophy, there are many compensation principles from weak to strong. As mentioned earlier, scholars advocating for the absorption of economic compensation for divorce into the system of community property mainly propose compensation amounts based on moral assistance. Scholars advocating for the division of household wages and human capital actually propose a theory to improve the division of community property, where the compensation amount is set within the broad definition of community property and is required to be limited to the degree of benefit of the claimant’s spouse. Scholars who advocate damages compensation claim that adequate compensation is not limited to the benefits of the spouse of the household laborer, nor is it limited to the share of the community property of the spouse of the household laborer.42
There are also significant differences in the specific calculation methods for compensation, such as the production method, input method, opportunity cost method, industrial substitution cost method, comprehensive substitution cost method, and compensatory wage method.43 There are two typical viewpoints. First, some scholars propose to use the formula “household labor time × average hourly wage for domestic services/2” or learn from the practice of dividing residual common property in Germany. They take “(spouse’s annual income — household laborer’s annual income)/2 × duration of marriage” as the compensation’s benchmark. In fact, these viewpoints directly transplant the provisions of a separate property system to the community property system, which is not logically reasonable. Second, some scholars advocate a compromise and comprehensive calculation method, considering factors such as the duration of the marriage, the growth of the spouse’s human capital during the marriage, and the degree of impact of the “punitive effect” on the spouse performing household chores. The judge should make a judgment based on the specific circumstances. However, the factors considered in this method are actually not consistent. The length of the marriage is related to the wage of household labor and the improvement of human capital, but it is not necessarily proportional to the damage; the growth rate of human capital is not necessarily positively correlated with the opportunity cost loss of household laborers.
The compensation standards under the perspective of the damage compensation theory are relatively clear. On the one hand, compensation for damages generally promises full compensation, has a strong relief effect, and is in line with the legislative purpose of equally distributing family obligations and protecting human rights. On the other hand, the compensation for damages is limited to the foreseeable losses, distinguishing it from punitive damages based on fault, in order to prevent excessive obligations on the spouses of household laborers, increase the cost of divorce, and hinder the freedom of divorce. Finally, the provisions of the Civil Code on the amount of divorce compensation are clearly consistent with the calculation method of the amount of compensation for property losses caused by infringement of personal rights and interests stipulated in Article 1182 of the Civil Code. Both of them stipulate that both spouses shall reach an agreement through negotiation. If the negotiation fails, the court will determine the amount based on the actual situation. This clears up possible legal conflicts in determining the amount of divorce compensation with reference to tort liability.
When the court determines the specific amount, it can also determine the calculation method based on the constituent elements of tort liability. Referring to the constituent elements of tort liability, the factors affecting the amount of economic compensation for divorce should include three aspects. The first is a foreseeable, actual loss. Actual losses can be divided into several different situations: for those whose expected interest is reduced due to household labor, the “proven decrease in income” can be used for calculation; for those who were unemployed before marriage or cannot prove their income status and have no reference objects, the calculation can be based on “the cost of filling social security (if necessary) + necessary expenses for training and learning + salary difference due to seniority (the salary difference affected by work experience, proficiency, etc.).”
The second is the causal relationship between illegal behavior and losses. The loss of expected interest for household laborers often has multiple causes. Economic compensation for divorce, however, only requires compensation for the loss of interest due to long-term household labor. Two factors have a strong causal correlation with the consequences of damage. One is the length of the marriage, and the other is the age at the time of marriage and childbirth.44 When making a judgment, the court can comprehensively assess the degree of causal connection based on these two factors, further dividing it into full causal relationship, partial causal relationship, and minor causal relationship, and multiplying foreseeable, actual losses by coefficients ranging from 0% to 100%.45
The third is illegality. As mentioned earlier, unequal arrangements of household labor violate Article 1041 of the Civil Code. However, the degree of unequal distribution of household labor varies among different families. The corresponding proportion should be deducted from the compensation amount if the spouse also assumes certain household obligations. When determining the amount of compensation, it can be calculated according to the formula of “foreseeable, actual losses × (the household labor time of one spouse exceeding the average share/average household labor time × 100%).”
Conclusion
The equal distribution of household labor complies with the legal requirements of gender equality and meets the cultural and social requirements of family harmony, mutual love, and mutual assistance. The institutional design of economic compensa tion for divorce promotes this purpose from a negative perspective. Although it cannot replace the positive institutional design of political and legal systems, it is still an essential part of the institutional system. The clauses on economic compensation for divorce should be understood as a means to guarantee personal development opportunities and equal rights, so that they can meet the legislative purpose, integrate into the self-consistent legal system, and be feasible in judicial practice.
Examining economic compensation for divorce from a human rights perspective, interpreting the legal basis of economic compensation for divorce based on gender inequality in personal development opportunities and rights, and basing the determination of the amount of economic compensation on special tort liability, this approach first ensures a relatively strict compensation responsibility, which helps to awaken unconscious gender inequality and forces both spouses to distribute family obligations equally. Meanwhile, considering economic compensation for divorce as a non-fault tort liability can make it an independent remedy, distinct from divorce economic assistance and indemnity, and better conform to the form of statutory ownership under the system of community property. Furthermore, linking economic compensation for divorce as a special tort liability to relevant provisions of tort law can reduce the practical and potential disputes in this field and provide a legal basis and precedent for calculating the amount of economic compensation for divorce. Therefore, interpreting economic compensation for divorce based on the concept of gender equality as a correction and restoration of unequal personal development opportunities can achieve the integration of the legal purposes, legal doctrines, and legal techniques of the clauses on economic compensation for divorce and provide a more reasonable approach to resolve theoretical and practical differences regarding this clause.
(Translated by CHEN Feng)
* GAO Lijie ( 高礼杰 ),Associate Professor at the Institute for Marxist Legal Philosophy of Southwest University of Political Science and Law, and a researcher at the Wen Xueping Studio of Chongqing Key Research Base for Humanities and Social Sciences. This paper is a phased result of the Chongqing Municipal Education Commission’s Base Project titled “Research on the Chinese Voice, Chinese Connotation, and Chinese Contribution Regarding the Common Values for All Mankind” (Project No. 22SKJD015), as well as the Southwest University of Political Science and Law’s school-level scientific research project titled “Research on the Concept of Distributive Justice in Chinese Path to Modernization” (Project No. 2023XZZXYB-06).
1. Chen Wei and Yu Linyang, “On the Fate of China’s Economic Compensation for Divorce System: To Improve or to Abolish,” Law Science 6 (2011).
2. Chen Lijuan, “Legal and Economic Analysis of the Right to Claim for Housework Compensation,” Journal of Chinese Women’s Studies 2 (2007).
3. Wu Changzhen, Investigation on the Implementation of the Marriage Law (Beijing: Central Party Literature Press, 2004), 134.
4. Li Hongxiang, “On the Reconstruction of the Divorce Economic Compensation System,” Contemporary Law Review 6 (2005); Li Xin, “On the Improvement of the Divorce Economic Compensation System,” Law Science Magazine 6 (2011).
5. He Junping, “On the Application of the Principle of Equity in Divorce Property Division in China,” Studies in Law and Business 1 (2005).
6. Karl Marx, Capital, vol. 1, Guo Dali and Wang Yanan trans. (Shanghai: Shanghai Sanlian Bookstore, 2009), 245.
7. Ibid., 1.
8. Ibid., 2.
9. Friedrich Engels, “The Origin of the Family, Private Property and the State,” in Selected Works of Marx and Engels, vol. 4 (Beijing: People’s Publishing House, 2012), 178.
10. Yang Biao and Lin Yanqi, “The Right to Compensation for Household Labor in Non-marital Cohabitation,” Political Science and Law 12 (2020); Xia Yinlan, “The Human Rights Connotation of the Improvement of the Economic Compensation for Household Labor in Divorce in the Civil Code,” Chinese Journal of Human Rights 12 (2020).
11. Article 206 (f) and (g) of the Action Plan of the Fourth World Conference on Women, website of the Working Committee on Women and Children of the State Council.
12. Yang Biao and Lin Yanqi, “The Right to Compensation for Household Labor in Non-marital Cohabitation,”Political Science and Law 12 (2020).
13. Marriage and Family Law Association of the China Law Society, Compilation of Foreign Marriage and Family Laws (Beijing: Qunzhong Publishing House, 2000), 296.
14. Catherine MacKinnon believes that contemporary feminism originated from Marxism and advocates that the economic status of gender determines gender inequality. She also listed six reasons why feminists support household wages, see Catherine MacKinnon, Toward a Feminist Theory of the State, Qu Guangdi trans. (Beijing: China University of Political Science and Law Press, 2007), 97.
15. Wang Geya, “Compensation for Housework Contribution: Application Conflict and System Reflection,”Seeking Truth 5 (2011).
16. Catherine MacKinnon, Toward a Feminist Theory of the State, Qu Guangdi trans. (Beijing: China University of Political Science and Law Press, 2007), 4.
17. Ibid., 55.
18. Friedrich Engels, “The Origin of the Family, Private Property and the State,” in Selected Works of Marx and Engels, vol. 4 (Beijing: People’s Publishing House, 2012), 87.
19. Catherine MacKinnon, Toward a Feminist Theory of the State, Qu Guangdi trans. (Beijing: China University of Political Science and Law Press, 2007), 59.
20. Hegel, Philosophy of Law, Fan Yang and Zhang Qitai trans. (Beijing: Commercial Press, 1961), 185.
21. Some scholars hold the opposite view to the above viewpoint, believing that income is a direct contribution while household labor is an indirect contribution. See Chen Wei and Yu Linyang, “On the Fate of China’s Economic Compensation for Divorce System: To Improve or to Abolish,” Law Science 6 (2011).
22. Zhao Lixia, “Legislative Improvement of China’s Economic Compensation for Divorce System,” Contemporary Law Review 1 (2006); Chen Wei and Yu Linyang, “On the Fate of China’s Economic Compensation for Divorce System: To Improve or to Abolish,” Law Science 6 (2011); Guo Ji and Song Qingli, “On the Legal System of Economic Compensation for Divorce in China,” Jiangxi Social Sciences 12 (2007).
23. Susan Okin, Justice, Gender, and the Family, Wang Xinyu trans. (Beijing: China University of Political Science and Law Press, 2017), 196.
24. Song Yu, “On the Retention or Abolition of China’s Economic Compensation for Divorce System,” Modern Law Science 5 (2008).
25. Li Hongxiang, “On the Reconstruction of the Economic Compensation for Divorce System,” Contemporary Law Review 6 (2005).
26. Gao Liuzhi, “Legislative Improvement of the Household Compensation System,” Hebei Law Science 2 (2004); Li Hongxiang, “On the Reconstruction of the Economic Compensation for Divorce System,” Contemporary Law Review 6 (2005).
27. Guo Ji and Song Qingli, “On the Legal System of Economic Compensation for Divorce in China,” Jiangxi Social Sciences 12 (2007).
28. The Leading Group for the Implementation of the Civil Code of the Supreme People’s Court, Understanding and Application of the Book on Marriage and Family and Book on Inheritance of the Civil Code of the People’s Republic of China (Beijing: People’s Court Press, 2020), 316.
29. Xia Yinlan, “The Human Rights Connotation of the Improvement of the Economic Compensation for Household Labor in Divorce in the Civil Code,” Chinese Journal of Human Rights 2 (2020).
30. Research Group of the Third Social Status Survey of Chinese Women, All-China Women’s Federation, “Report on the Main Data of the Third Social Status Survey of Chinese Women,” Journal of Chinese Women’s Studies 6 (2011).
31. Chen Wei and He Wenjun, “An Empirical Investigation and Research on the Judicial Practice of China’s Divorce Relief System: Based on a Sample Survey of Divorce Cases in a Grassroots People’s Court in Chongqing from 2010 to 2012,” Hebei Law Science 7 (2014).
32. Department of Philosophy of Peking University, Ancient Greek and Roman Philosophy (Beijing: Commercial Press, 1961), 7.
33. Aristotle, Nicomachean Ethics, Liao Shenbai trans. (Beijing: Commercial Press, 2003), 129.
34. Xiao Jie, “The Impact of Housework on Gender Income Gap: An Analysis Based on the Data of the Third Survey on the Social Status of Chinese Women,” Journal of Chinese Women’s Studies 6 (2017).
35. Regarding whether “illegality” is a constituent element of tort liability, please refer to Liu Jingwei and Zhou Yu, “Re-recognizing the Illegality and Fault in the Composition of Tort Liability,” Gansu Social Sciences 2 (2021). However, this issue is not within the scope of this paper and does not affect the conclusion of this paper.
36. Yang Biao and Lin Yanqi, “The Right to Compensation for Household Labor in Non-marital Cohabitation,”Political Science and Law 12 (2020).
37. John Rawls, Justice as Fairness: A Restatement, Yao Dazhi trans. (Beijing: China Social Sciences Press, 2011), 35-36.
38. Wang Liling, “A Study on the Compensation System for Domestic Work,” People’s Tribune 3 (2016).
39. Wang Geya, “Compensation for Housework Contribution: Application Conflict and System Reflection,” Seeking Truth 5 (2011).
40. Wang Hongyan, “On the Application of Housework Compensation System During Divorce in China,” Hunan Social Sciences 5 (2013).
41. Chen Wei and He Wenjun, “An Empirical Investigation and Research on the Judicial Practice of China’s Divorce Relief System: Based on a Sample Survey of Divorce Cases in a Grassroots People’s Court in Chongqing from 2010 to 2012,” Hebei Law Science 7 (2014).
42. Yang Biao and Lin Yanqi, “The Right to Compensation for Household Labor in Non-marital Cohabitation,” Political Science and Law 12 (2020).
43. Wu Qi, “Decomposition and Reconstruction of the Compensation System for Housework Contribution,” Jiangxi Social Sciences 3 (2013).
44. The age factor refers to the significant negative impact of engaging in household labor or childbirth during the critical period of a young career on future income improvement. See Chen Wei, Dong Haoyue and Liu Jinju, “The Impact of Fertility on Women’s Wage Rates in China: An Analysis Based on a Queue Perspective,” Statistical Research 5 (2022).
45. For example, those who have been married for more than 20 years, or those who have been married for more than 15 years and got married under the age of 30, can be regarded as sufficient causality, with a coefficient of 100%. If one have been married for over 10 years but less than 20 years, or got married before the age of 30 and have been married for more than 5 years but less than 15 years, the marriage can be considered a partial causality, with a coefficient ranging from 50% to 100%. Those who have been married for less than 10 years, or those who have been married under the age of 30 and have been married for less than 5 years shall be regarded as secondary causality, with a coefficient ranging from 0% to 50%. Of course, the specific numbers should depend on the specific circumstances.
