What in the difference between fairness and equality?

When it comes to financial remedy in the context of divorce or civil partnership dissolution, the terms “fairness” and “equality” are often used interchangeably. However, they represent distinct concepts that play crucial roles in the legal process. Understanding the difference between fairness and equality can help parties navigate the complexities of financial settlements more effectively.

Equality: A Starting Point

Equality in financial remedy refers to the equal division of assets between the parties. This concept is often the starting point in financial settlements, particularly in long marriages where both parties have contributed equally to the family, whether financially or otherwise. The idea is that both parties should leave the marriage with an equal share of the marital assets.

When Equality is Applied

• Long Marriages: In long-term marriages, the courts often start with the presumption of equality, especially if both parties have made significant contributions.
• Clear Financial Contributions: When both parties have contributed equally to the family finances, an equal division of assets may be deemed appropriate.

Fairness: A Broader Perspective

Fairness, on the other hand, takes a broader view of the circumstances surrounding the marriage and the needs of both parties. The court aims to achieve a fair outcome, which may not necessarily mean an equal division of assets. Fairness considers various factors, including the needs, resources, and future earning capacities of both parties.

Factors Influencing Fairness

• Needs of the Parties: The court will consider the financial needs of both parties, including housing, living expenses, and any special needs.
• Earning Capacity: The future earning potential of each party is taken into account. For example, if one party has sacrificed their career to care for children, this will be considered.
• Contributions: Non-financial contributions, such as homemaking and childcare, are also considered in the assessment of fairness.
• Standard of Living: The standard of living enjoyed during the marriage is a factor, with the aim of allowing both parties to maintain a similar standard post-divorce.

Practical Examples

Example 1: Equal Division

In a long-term marriage where both parties have worked and contributed equally to the family finances, an equal division of assets might be considered both fair and equal. Here, the starting point of equality aligns with the broader concept of fairness.

Example 2: Unequal Division

In a scenario where one party has been the primary breadwinner while the other has taken on the role of homemaker and primary caregiver for the children, an equal division of assets might not be fair. The court may award a larger share of the assets to the homemaker to account for their future needs and the sacrifices made during the marriage.

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