Wilson Kwong*
When two spouses are married, they owe each other a mutual duty of support. If the spouses separate from each other, one spouse may have to pay spousal support to the other. There are three conceptual grounds recognized in case law and statutes for the entitlement to spousal support, namely compensatory, non-compensatory, and contractual spousal support. One may ask what the basis and philosophy are behind these grounds. The two models of marriage and post-marital obligation discussed in Bracklow v. Bracklow (1999) provide the theoretical basis for these grounds, particularly compensatory and non-compensatory spousal support.
The first one is the “basic social obligation” model. This model assumes the primary responsibility of post-marital obligation to provide for the ex-partner falls on the former spouse instead of the government. It suggests a historically rooted concept of marriage: one spouse usually appears to be in power and the other would be dependent on that spouse. In that sense, they live as a union that creates interdependency, and “their affairs may become intermingled and impossible to disentangle neatly” (paragraph 31). The court views that, under such circumstances, it is “not unfair to ask the partners to continue to support each other” (paragraph 31). This provides the theoretical basis for non-compensatory spousal support.
The second one is the “independent” model. In contrast to the first one, this model stresses the idea that the parties of marriage are equal, such that each party is “an autonomous actor who retains his or her economic independence throughout marriage” (paragraph 24). Under this model, upon separation or divorce, a former spouse “having been compensated in a restitutionary sense any economic costs of the marriage on the other spouse, moves on with his or her life, possibly to enter into more such relationships” (paragraph 24). In other words, this model assumes a former spouse may make a clean break from the former relationship by being compensated by the other spouse. It provides the theoretical basis for compensatory spousal support.
Which model best represents and applies to modern marriage and family law cases? There is no definite answer. Very often, the two models can be applicable at the same time and supplement each other. In early 1999, the court in Bracklow acknowledged modern marriages were a complex mix of interdependence and independence. The court’s view is insightful and is still an accurate depiction of marriages nowadays, where spouses run their marriage with a combination of interdependence and independence to varying extents. Just as how the complex world of physics cannot be explained with just one equation, in family law, it is “not a question of either one model or the other. It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court” (paragraph 32).
* Wilson Kwong is a law clerk at the Law Office of Jeff Jiehui Li.