The motherhood penalty … Is there such a thing in Family Law?

motherhood penaltyIt is concerning to read about the studies showing that women are on the back foot with their career path, and in turn, financially in life, if they choose the path of motherhood.

As of last year, the national gender pay gap stood at 16% and had remained between 15% and 19% for the past two decades.

Source: glassdoor

As recently as last week, @beck_sullivan wrote about the staggering amount of Aussie women that are losing their jobs just because they are choosing to have children.

mothers in the workforce infographic

Personally, I would have thought that with society’s recognition of, and the dialogue surrounding, the ‘glass ceiling’, that justice for women in the workplace would be a reality by now rather than a distant dream (as it once was).

Unfortunately, studies indicate a battle for women that exists, other than that of the ‘glass ceiling’. It is the struggle of the modern woman who tries to have it all… and why not?! There is no reason why that shouldn’t that be the case provided that society is encouraging of this ethos.

While we acknowledge the studies and statistics surrounding women in the workplace, it can be argued that the ‘motherhood penalty’ does not exist in the context of Australian family law. Rather, we can take pride in our family law system as the contribution of a homemaker and parent is seen as equal to the contribution of the ‘breadwinner’ during a relationship.

However, there remains a point of concern in family law cases as it relates to the financial independence and success of a primary parent, most commonly the mother.

The concern is the disparity in the initial financial contribution of each person in a relationship. Family Law provides that the Court should assess the contributions of each party, including the assets they brought into the relationship. Sometimes, the initial contribution of one party is so great that the homemaker and primary parent is disadvantaged when a relationship breaks down. That parent is then left to care for the child or children primarily, while the other parent is able to commit more fully to their career and earn a full-time income with only a fraction of the commitment to care for any such child or children.

The good news is that in these circumstances, our legal system also provides for a result which is ‘just and equitable’ having regard to that particular factor. In my experience, this often achieves a result which does not disadvantage the primary parent. While it should be recognised that the primary parent can be either the mother or the father, traditionally and most commonly, this role is assumed by the mother.

What does it mean for a property division to be ‘just and equitable’?

The Court carefully considers the effect of the Court’s findings and decides what order is just and equitable in all the circumstances of the case. More simply, the reasons vary from case to case depending on the outcome of the decision on each of the litigants.

What is your take on the ‘motherhood penalty’?

Does it only exist in corporate Australia or in our legal system as well?

Nora Michael is an associate director in our Sydney Office .

By |2018-03-27T09:51:50+00:00March 27th, 2018|

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