ABSTRACT
The international rise in divorce in western jurisdictions has brought with it the challenge of determining how best to deal with the economic consequences of matrimonial breakdown, both procedurally and substantively. This chapter explores some basic methodological questions concerning the route to fair outcomes: pillar systems versus equitable redistribution systems; and the use of rules, principles, guidelines and discretion. The equitable redistribution jurisdictions’ emphasis on discretion and explicit pursuit of overall fairness can give rise to the perception that the pillar jurisdictions ignore fairness, attending in a rule-driven, mechanical way to each pillar regardless of the overall picture. Marital agreements have been the subject of much recent attention in several jurisdictions, whether in the form of pre-/ante-nuptial, post-nuptial or separation agreements regarding the division of assets and other post-marital financial obligations, particularly maintenance/alimony. In western jurisdictions, very few legal rules regulate how a marriage should be lived.
