Gender (in)equality in divorce in Switzerland: Lawyers' formal-egalitarian vs. compensatory interpretations.

Abstract

While family law in Western countries has changed dramatically in recent decades towards the ideal of gender equality, many inequalities remain with regard to the gendered outcomes of separation and divorce. Moreover, in family law, the move towards private ordering of legal issues in divorce has shifted the focus from the courts to lawyers, who have become central to the negotiation process in and out of court. Consequently, the interpretation of the law by lawyers needs to be scrutinised in order to assess its potential impact on the outcome of divorce settlements in terms of gender equality. Based on a large-scale survey of Swiss divorce lawyers and using a scenario approach, we examine the division of pension assets and post-marital maintenance, issues that are critical to the long-term socio-economic consequences of the unequal division of paid and unpaid work between couples. From an empirical perspective, the article examines the preferences of divorce lawyers with respect to the formal-egalitarian, compensatory and traditionalist interpretations. The findings suggest that the formal-egalitarian interpretation of gender equality is gaining traction in Switzerland, and that an awareness of gender inequalities is necessary in order to make full use of the compensatory mechanisms embedded in written law.