Economic Gender Equality and the Decline of Alimony in Switzerland

• Author: Dorian Kessler
• DOI: http://doi.org/10.1111/jels.12258
• Date: 01 September 2020
• Published date: 01 September 2020

Journal of Empirical Legal Studies

Volume 17, Issue 3, 493–518, September 2020

Economic Gender Equality and the

Decline of Alimony in Switzerland

Dorian Kessler*

Research has established a historical decline of alimony for divorced women in Western

countries. Because the main function of alimony is to compensate for differences in cou-

ples’ economic resources and needs, it is plausible that the reduction of alimony is a conse-

quence of greater economic equality between husbands and wives. Scholars of divorce law,

however, have argued that declines in alimony have instead resulted from a deliberate

reorientation of alimony law that, by limiting alimony, has sought to facilitate divorces and

to cause greater economic gender equality. Through a trend decomposition analysis that

draws on couple income data linked to case-level court reports from Switzerland before

and after the introduction of no-fault divorce (1990–2008), this study assesses the extent

to which the decline of alimony is a consequence of reduced economic inequality in cou-

ples. During the study period, alimony declined from about one divorce in two to about

one divorce in three, but the explanatory value of lower economic inequality in couples is

limited regarding this trend. In fact, greater shares of couples’ incomes earned by women

and more egalitarian distributions of child custody after divorce can explain, at best, half

the decline in limited-term alimony. Greater equality in pension incomes explains steep

reductions in unlimited alimony but cannot account for why limited-term alimony awards

for women of working age have become less likely. I conclude that increases in Swiss

women’s economic self-sufficiency have not kept pace with the decline of alimony. The

hypotheses that changing norms in alimony law are reducing alimony and that less

alimony stimulates women’s employment thus deserve closer examination.

I. Introduction

Aside from the allocation of child custody, the main issue at stake in divorce negotiations

is the economic settlement. Marital property regimes provide relatively clear guidelines

for how wealth that spouses brought into or accumulated during marriage is to be

*Address correspondence to Dorian Kessler, Social Work Department, Bern University of Applied Sciences,

Hallerstrasse 8, 3012, Bern, Switzerland; email: dorian.kessler@bfh.ch

This research was funded by the Swiss National Science Foundation (Grant 149594). Prior versions of this arti-

cle were presented at a research workshop at Bern University of Applied Sciences, at the “Inequality Within Cou-

ples Workshop” at Humboldt University in Berlin, and at the junior researcher workshop at the Center for Family

Sciences at the University of Basel. The author thanks the Swiss Federal Statistical Office for providing the data,

anonymous referees and workshop participants for their helpful comments, and Joshua Vidich for proofreading

the article.

493

divided upon divorce, and laws pertaining to child support have become highly formal-

ized in recent decades (Skinner & Davidson 2009). However, in both European and

U.S. divorce law practice, rules governing the determination of support orders to

divorced ex-spouses, that is, alimony, are much less formalized and vary greatly between

contexts (Oldham 2017; Ribot 2011; Starnes 2011).

What is the purpose of alimony? Under the early institutional marital regimes in

Western countries, the husband was often given full control of and responsibility for the

couple’s economic resources (Cherlin 2004). The resulting economic inequalities

between spouses were challenged by the legalization and diffusion of divorce. Since they

held no wealth, divorce jeopardized women’s economic security. Alimony then emerged

as a means to balance discrepancies in economic resources and needs for divorced cou-

ples, thereby reducing the financial consequences of divorce for women and public wel-

fare (Katz 2014:95; McMullen 2011).

With a growing number of couples having equal earnings, and of divorcees equally

sharing parenting responsibilities, the core rationale for alimony has thus been eroding.

In such a context, it is unsurprising to find that alimony is on the decline. In Scandina-

vian countries, alimony had already become a marginal phenomenon early on in the

20th century (Laplante 2016; Ribot 2011), while downward trends in alimony have also

been confirmed more recently in the United States, Germany, and France (Bredtmann &

Vonnahme 2019; McMullen 2014; Ribot 2011). U.S. law scholar Judith McMullen expects

that alimony will “probably sooner rather than later” be restricted to couples in highly

particular circumstances (McMullen 2014). From this perspective, declines in alimony

orders are a consequence of less economic inequality between divorcing husbands and

wives. If women gained in economic independence in proportion to the reductions of ali-

mony they received, one could speak of well-calibrated alimony systems that have kept

pace with societal changes.

Yet, reductions in alimony have also been linked to divorce law playing a more

active role. Many have claimed that reduced alimony is the result of changes in the ideals

underlying legal texts and their application by courts (McMullen 2014; Oldham 2017;

Ribot 2011; Schwenzer 2009). Specifically, alimony law is increasingly thought of as being

oriented toward the principle of “clean financial breaks.” This notion advocates the avoid-

ance of alimony in the interest of speeding up the divorce process (cf. Peters 1986),

reducing conflict, and facilitating spouses’ transition to life after divorce (Crowley 2016,

2017). “Clean financial breaks” are also rooted in the view that divorce settlements not

involving alimony encourage women’s economic self-sufficiency. Limiting alimony is seen

not only as a way to give women an incentive to work after divorce, but also as a signal to

currently married women and, ultimately, a means to cause a more gender-egalitarian

society (Berghahn 2004; Leroyer 2016).

If, however, alimony was reduced based on these motives and women were unable

to offset the lost private transfer income with greater earnings, they have been left worse

off financially (Bredtmann & Vonnahme 2019). In such a scenario, rather than increas-

ing gender equality, more restrictive alimony laws have caused the historical persistence

of economic hardship found among divorced women in many national contexts (Bayaz-

Ozturk et al. 2018; Bro

¨ckel & Andreß 2015; Kessler 2018; Le Bourdais et al. 2016).

494 Kessler