Abstract
Asserting the value of care work within a family is not only a significant issue that affects the quality of marital life, but it also lays the groundwork for supporting the sustainable development of society and, ultimately, the country. Constantly, the theory of surplus value is employed to help understand the value of care work. However, it still lacks a macro-construction from a gender perspective. This article analyzes 15 judicial cases after introducing the Civil Code and compares the condition of application, the amount, and the factor considered in recognition of care work compensation under Chinese law. It concludes that in practice, the amount of compensation for care work remains relatively modest, with the division of the community property division heavily influencing it. At the macro level, the recognition of the economic value of the care work compensation must be emphasized from a gender construction. In contrast, at the micro level, a balance must be struck between the possibility of the other spouse benefiting from “the opportunity cost.”
Introduction
Time is money. However, when it refers to care work, this statement is only sometimes the truth. Care work is often undervalued and invisible, especially after the COVID-19 pandemic (Himmelstein & Venkataramani, 2019). It is because we currently measure our economies by ignoring a large portion of unpaid care work that affects all of us. Focusing on “production” instead of the sustainable reproduction of human life devalues care work and those who perform it (Bahn et al., 2020). In fact, women have taken on more care work around the world (International Labour Organization [ILO]; Addati et al., 2018). This rate has been even exacerbated since the COVID-19 pandemic due to school closures. The opportunity cost refers to the potential loss of benefits for the bearer of care work due to specific socially constructed structural arrangements (gender bias and value subordination of care work). So attaching importance to care work, especially unpaid in the family, is not just hypothetical but critical to being a necessary foundation for a peaceful, prosperous, and sustainable world and achieving the 2030 Agenda for Sustainable Development (Moreira da Silva, 2019).
Although the care work compensation has long been established in the Marriage Law of the People’s Republic of China, it is only applicable to cases where the spouses are under separate property regimes in China. According to Article 40 of the Marriage Law of the People’s Republic of China (Marriage Law of the People’s Republic of China [2001 Amendment]; The National People’s Congress, 2001), the homemaker could only claim compensation for the additional duties in respect of raising children, looking after the elderly, or assisting the other spouse in his work upon divorce against the other party if the spouse had reached prior written agreement that the property acquired by each party during the marriage would be separate property. In reality, the proportion of Chinese couples adopting the separate property regime is deficient. A scholar has used this provision to search the court rulings that have come into force in China between 2001 and 2014, and the results were only 40 cases, and only two of these claims for care work compensation were upheld by the People’s Court, accounting for 5% of the total number of cases (Y. Chen, 2015).
The Civil Code (Civil Code of the People’s Republic of China; The National People’s Congress, 2020), enacted on May 28, 2020 and commenced on January 1, 2021, consists of the General Provisions of the Civil Law “merged” with its sub-titles, totaling 1,260 articles, covering the entire life of every citizen from birth to death. The Marriage and Family Chapter of the Civil Code further regulates the foundations and core elements of the marital relationship to guarantee the married partners’ rights are more adequately safeguarded and supported in law. The entry into force of the Civil Code of the People’s Republic of China has brought new life to care work compensation. Article 1088 of the Civil Code, for the first time, extends the application of compensation for care work from the system of marital separate property only to the system of marital community property. Moreover, the couple can reach a marital agreement concerning the specific compensation for care work. If not, the court has the right to adjudicate the appropriate amount. Nevertheless, Article 1088 of the Civil Code makes it possible to request compensation for care work without presupposing a specific property regime for the couple. The substantial change reflects not only a further recognition of the internal value of care work but also a further effort in civil legislation in terms of gender equality. Since the application of the clause, the number of judicial cases judged by Chinese courts invoking the new law has been increasing. The trial results of the low compensation for care work are also deeply criticized. Many judges in these cases have expressed difficulty in determining the value of care work, and they argue that it is impossible to fully reflect the market value of care work if cases are judged based on existing factors. An opinion published on an official website explained why: “Housework made by spouses is different from contracted work between employers and nannies because ‘love’ is weighed into the housework.” It can be clearly seen that China’s legislation and judicature have many difficulties in dealing with cases concerning care work compensation under the system of marital community property.
In this article, two points need to be noted. First, the phrase “care work” is used to describe housework in a broader sense. According to the interpretation of the text, care work in the Civil Code also encompasses raising children, looking after the elderly, even assisting the other spouse in his work, etc., in addition to home management in the narrow sense. Second, this study will only discuss the care work compensation between heterosexual couples. In modern Chinese society, there are many families where the spouses’ parents perform the care work. The authors believe that the care work provided by the parents is an immediate gift to their children and lacks the legal basis for a claim of return. Therefore, it will be excluded from our discussion in this article.
This article aims to solve the problem: In China, how to improve the compensation regime for care work under the system of marital community property from a gender perspective? In order to solve the problem, our study will be conducted in three aspects: First, a summary of the typical problems in judicial practice when Article 1088 of the Civil Code applies to the relevant cases. Second, the relationship between the value of care work and the system of marital community property. Third, an attempt to sift through the critical factors that should be taken into account when measuring the value of care work.
The article is structured as follows: Section “Prior Research and Theory” summarizes the prior research on the value of care work and discusses the study’s concept and theory of care work. Section “Methodology” describes the methodological framework of this study, uses case studies to collect the data, explains the reason for choosing typical cases involving Article 1088 of the Civil Code, and introduces their basic information. Section “Result” summarizes the main features presented by the judgment on care work compensation in judicial practice. Section “Discussion” discusses the reasons for the low amount of care work compensation decided by the courts, clarifies the relationship between the amount of compensation and the marital joint property, and further argues the reasonableness of concerning the “opportunity cost” as a difference between the spouses’ cooperation in the consideration of compensation. Section “Conclusion” presents the conclusion.
Prior Research and Theory
Prior Research
Recently, the discussion on the value of care work among Chinese family law scholars has taken the promulgation of the Civil Code as its watershed. Earlier, a number of researchers focused on discussing whether care work compensation should be treated differently depending on the property regime of the spouses. Ma et al. (2006) believes that if the claim for compensation for care work is only supported under the separate property between husband and wife, it does not reflect the protection for the party undertaking care work. After all, Chinese marriage law gives joint ownership of marital property, and most spouses choose to share their property (Lin, 2001). After the enactment of Article 1088 in the Civil Code, many studies have paid attention to the following two problems regarding the value of care work: First, can the homemaker can ask for separate care work compensation in addition to the distribution of marital property? In Chinese law, if there is no particular agreement or special circumstances, the court usually adopts the equal distribution of the jointly possessed property during divorce. Lin (2001) notes that equal distribution of property in divorce aims to protect financially dependent full-time homemakers. In other words, the main argument opposing separate care work compensation is that the equal distribution has already considered the homemaker’s contribution to the family and has reflected the value of the care work without the need for “repetitive dual compensation” (Y. Wang, 2021). However, many scholars hold different views on the separate care work compensation. They contend that the equal distribution of marital property can sometimes erase the value of care work. For example, in the case where one spouse has to work outside the home and undertake household chores inside the home at the same time, even at a higher salary than the other party, the equal distribution of the couple’s jointly possessed property will not only make him/her suffer but also fail to reflect his/her contribution to the family in terms of care work (W. L. Wang, 2016). Second, how do we determine the value of care work? A few studies suggest that the spouse’s human capital and potential interest should be considered when courts recognize the economic value of care work (Xia, 2020). However, there still needs to be an ideal method to measure the accurate amount of care work compensation.
It can be seen that the preceding studies are aware of the role of gender in the division of care work and even consider Article 1088 of the Civil Code as a staged success in realizing gender equality in care work, despite different views on the way to weigh the value of care work more fairly. Fineman (1994) finds that the equality reformation of family law is only “rule-equality” that cannot actually bring “individualized justice for women.” These studies focus more on the applicability of the care work compensation provisions and their correlation with the existing marital property system, with an absence of more in-depth research on the source of division and the presentation of the value of care work from the perspective of gender construction, in order to analyze the shortcomings and the proper meaning of the existing care work compensation regime.
Gender Theory
As the purpose is to explore the internal logic between care work compensation and the spousal property regime, it is appropriate to understand it based on the gender theory discussed above. The traditional discussion on the factors affecting the division of care work in the home has focused on economic resources. The relative resources hypothesis insisted by Hiller (1984) stresses that the partner bringing a relatively more significant share of these resources to the marriage can minimize his/her participation in household and childcare duties. The new family economy hypothesis raised by Becker contends that increasing returns from specialized human capital is a powerful force creating a division of labor in allocating time and investments in human capital between married men and married women. The overwhelming dominance of women in care work stems largely from their role as mothers, who always had primary responsibility for child care and other housework (Becker, 1985). However, some empirical studies’ findings are inconsistent with these two hypotheses. Compared with the economic resources, the influence of traditional gender theory seems to have more explanatory power on the division of care work (Grunow et al., 2012; Sun, 2021).
According to gender theory, women “choose” to be responsible for care work because of social shaping. Abrams (1992) claims that the current division of care work is mainly due to the lack of husbands’ support for their wives to work outside, the care work labeled as “women’s work” by society, the discrimination and exclusion of women in the labor market, especially for those who are pregnant or still breastfeeding. However, a number of researchers hold different views on the perception of gender inequality. Coltrane (2000) found that many individuals do not sense the gender inequality in the division of care work because of Internalized gender roles. On the other hand, Bianchi et al. (2000) argue that men and women will consciously behave to meet their gender expectations in order to gain the approval of others.
Unfortunately, this social construction also works backward on the employment of women. In order to have enough time for daily household chores and child caring, women with more robust family responsibilities tend to have more limits on searching for a job. Becker (1985) confirms that more effort spent on household chores will result in less effort, lower wages at work, and even occupational gender segregation. This result will further increase the imbalance in relative resources and lead to the “feminization” of care work. From the point of view of uneven allocation of resources led by social construction, one of the goals of forming a reasonable distribution of care work is to change the existing unjust legal system and to require the state’s active intervention (the law) to compensate women. The so-called value compensation in the legal sense indeed includes social welfare benefits and the consideration of care work in property division and alimony determination during divorce (W. L. Wang, 2016). Many scholars have criticized and opposed welfare benefits because they can commodify family relationships and thus reinforce gender inequality in the division of care work (Chamallas, 2012). In order to change this kind of gender inequality, more scholars are committed to recognizing the value of care work through improving the legislation. Silbaugh (1996) argues that the reasons for its problematic distribution between the sexes are not only gender inequality in employment but also the inferiority of care work over paid work in law. Williams (1994) proposes equal distribution of all wages of each spouse acquired even after the divorce. The duration of the marriage would determine the period of sharing post-divorce wages.
Although our study has a Chinese context, it will likely to shed some light on how the value of care work can be recognized through family legislation. Therefore, the purpose of this study is to qualitatively analyze the effects of the implementation of Chinese law on the provisions of care work compensation through case studies and, on the basis, attempt to theoretically explain the value of care work and its relationship with the marital property regime from the perspective of gender theory in order to filter out the critical influencing factors that judges should take into account when measuring the value of care work in judicial practice.
Methodology
In order to “better examine whether and how the value of care work can be fairly reflected in practice,” this study intends to use a case study approach to analyze the scope of application, the amount of compensation, and the measurement criteria of care work compensation in Chinese family law. Cases were obtained from China Judgements Online, which has a comprehensive judicial case search system. We found 122 judicial cases in which Article 1088 of the Civil Code was applied as the basis for decision. Through screening, we finally selected 15 cases for constant comparative analysis in the following parts, as they reflect several common scenarios of the most representative situations in practice. During the search process, we eliminated three categories of cases: duplicate cases with similar legal analysis, cases without care work compensation claimed separately, and cases in which the court did not analyze or even respond to the care work compensation. It is worth noting that although China has a high divorce rate in recent years, most couple get divorced according to mutual agreement. It is one of the reasons why the “cooling-off period before divorce,” also embodied in a new provision of the Civil Code, has attracted widespread public debate (Jiang, 2020). In addition, whether under the former Marriage Law or the current Civil Code, it is challenging to get a divorce using litigation at the practical level in China, let alone by claiming compensation for care work in divorce proceedings (He, 2009). In consequence, although this article cannot be exhaustive of all judicial cases involving claims for compensation for care work, the selection of 15 relatively representative cases from the 122 cases on “China Judgements Online” also corresponds to the practical dilemmas of the provisions on compensation for care work in the administration of justice pointed out in this article.
There are three types of relevant cases: divorce property disputes, post-divorce property disputes, and child support disputes in cohabitation relationships. In divorce cases, the party who is obligated to perform household work will claim for care work along with the divorce proceeding. In contrast, the care work compensation involved in post-divorce cases is mainly a request for the other party to pay the amount of compensation agreed in the divorce agreement to compensate for the delayed performance of his or her obligations. Correspondingly, in cohabitation cases, the party undertaking the care work claims compensation for care work when the cohabitation relationship is dissolved.
Tables 1 and 2 list the basic information of the 15 cases we selected, such as the parties, the trial court, the specific claims of care work compensation and the reasons. All cases collected are from 2020 and 2021. The rule is always Article 1088. This paper adopts the “4Rs” (Request, Rule, Reasoning, Result) legal case analysis structure for the comparative study. Since the cases selected are all based on Article 1088 of the Civil Code, we will focus our subsequent discussion on comparing legal requests, reasoning, and results. It is important to note that this study is limited to the issue of care work compensation. Other financial matters or interests involved in divorce are not explicitly discussed.
Basic Information of the Cases.
Judgement of the Court.
Result
In the era of the Civil Code, recognizing the value of care work has become a consensus in Chinese judicial practice (Y. Chen, 2015). In terms of scope of application, the compensation for care work is not only applied in marital relationships, but also in cohabitation relationships (i.e., Case N and Case O). Regarding the target audience, women are not the only parties to claim this kind of compensation but also men (i.e., Case M and Case N). There are two claims for care work compensation made by men in the 15 cases. It is worth noting that, despite the many changes in recent years that have shown a significant improvement in the status of women in China, the results of many studies in the field of sociology have shown that women are still the primary bearers of care work in Chinese families. Han and Wu (2020) analyzed gender differences in the time spent on household chores using data from the China Family Panel Studies (CFPS). He found that there are indeed significant gender differences in the division of household chores. In addition, women are under tremendous pressure to survive because of society’s increasing cost of living. When social occupations can not fully satisfy women’s self-worth, women are more willing to return to being “good wives and mothers.” They are happy to accept the family model of “the man is in charge of the outside world and the woman is in charge of the inside world” (Yang, 2014). It is consistent with the results of our case study. By screening 122 cases after the implementation of Article 1088 of the Civil Code, the total sample shows that the number of men undertaking household chores is minimal. We intentionally selected the two most representative cases to show that men’s claims for care work are only individual cases and that such claims are far less likely to evoke empathy than women’s in terms of public opinion and the trial outcome. However, the practical effect of this provision has yet to be satisfactory. When it comes to the amount of compensation, it seems to fall far short of the relevant person’s expectations (Liu, 2012).
First of all, the lack of clarity on the claim for “care work compensation” has led to a lack of fairness in determining of its actual value. In judicial practice, only a few cases mentioned explicitly the concept of care work compensation (i.e., Case D and Case E). In more cases, the parties concerned proposed other concepts, such as financial compensation (i.e., Case A, Case G, and Case H), moral damage compensation (i.e., Case B and Case F), or even financial assistance (i.e., Case K and Case L). These different definitions confuse care work compensation with other compensation items, further affecting the objective assessment of its separate value. Due to the lack of relevant evidence, compensation claims in individual cases could not even be supported (i.e., Case B). It is worth noting that sometimes judges help parties to correct definitions according to the factual basis. For example, in Case F, the judge changed the party’s claim for moral damages to financial compensation and upheld his claim.
Secondly, the judiciary does not seem to face squarely the value of care work. Judges may consider that since the money earned by the other party has already been divided equally between the parties in the division of property, there is no need to calculate care work compensation separately. The absurdity of this view is particularly evident in divorce cases where there is no common property to divide. For example, in Case I, the husband’s house and other assets were mixed with those of his parents, resulting in no common property to be divided in the divorce. The woman requested financial compensation of 60,000 RMB for having undertaken all the care work during the 3 years of the marriage. However, the court ultimately upheld only 10,000 RMB, taking into account her lack of residence and being sick.
At last, the amount of compensation for care work is too low in judicial decisions. It is more like a compassionate “handout” to the householder for the loss of opportunity costs and falls far short of its objective assessment. For example, in Case D, the wife who cared for her frail daughter during her husband’s 7 years of military service claimed for 100,000 RMB of care work compensation. Ultimately, the court upheld only 20,000 RMB because she failed to prove that her husband had neglected the family. Another example is Case H. The wife took on all the obligations of raising her two sons and supporting the parents-in-law while the husband was away for 26 years, but the court awarded her only 15,000 RMB in compensation in the end. At present, judges mainly take into account the main factors such as the local consumption expenditure per person living in rural or urban areas, the duration of the marriage/cohabitation/care work, and the financial situation of both parties (i.e., revenue, residence, physical situation) in order to determine the final amount of compensation. However, the court’s approach of treating the availability of income to the care worker as a diminishing factor in measuring the amount of compensation detracts from the actual value of the care work and no longer provides a fair measure of the additional contribution of the care worker to the family.
Discussion
Equal Division of Joint Property Fails to Show the Value of Care Work
The previous challenge to the provision of care work compensation under the community property regime was that the community property regime itself had already included the recognition of the economic value of the spouse who performed the care work. Lin (2001) has systematically observed the development of the matrimonial property regime from a historical perspective, suggesting that the separate property regime respects the separate personalities of each spouse and aims to ensure the economic independence of both spouses, while the community property regime aims to protect homemakers who are dedicated to care work but are financially incapable. There are two prominent opposite opinions. One view is that much of the care work performed by the spouse, who is responsible for both the main care work and working outside, is not reflected in the community property regime (W. L. Wang, 2016). Another view is that the spousal status in China is a prerequisite for acquiring the joint property regime after marriage rather than the cooperation of the spouses. As care work is not recognized by society, it can result in the work and contribution of the party who only undertakes care work in the family being overlooked by society and thus losing the basis for claiming their rights in the division of property in a divorce (Xu, 2013).
In terms of the arguments for applying care work compensation under the community property regime, the former opinion is relatively complex in practice but needs to be sufficiently convincing. In contrast, the latter view is more open to discussion. The legal provisions regulating the community property regime in China are based on the spousal status, not on the cooperation of the spouses. The formula for determining community property can be derived from the provision of Article 17 of the former Marriage Law and Article 1062 of the revised Civil Code. The first step is to see whether the marriage has survived, and the second step is to consider whether the five adverse circumstances are present. The author believes that such a formula for judgment is worthy of consideration. The ideal logic for judging community property should be the superimposition of the spouses’ status and cooperation. However, it does not mean that only what is jointly created by the parties belongs to their joint property. In this sense, even though the content of this collaboration can be arranged within each family on a case-by-case basis (in principle, the state should not interfere), the general requirements of the collaboration are set.
Whether at home or work, social gender construction tends to see care work as women’s “own job.” This cultural orientation seems to require women to complete their “own job” before discussing the specific contents of “cooperation.” For example, in daily life, many husbands consider themselves to be the “breadwinners,” as women are only “at home doing housework” without “earning money.” Unlike the more visible value of paid work outside, care work is a form of unpaid work that is internalized or requires one partner to undertake at the expense of his paid work opportunities. Moreover, care work has long been perceived as unearned work, which prevents it from being valued in its own right. The Commission on the Measurement of Economic Performance and Social Progress has also highlighted that despite its contribution, unpaid care work is excluded from the primary measure of national wealth as measured by gross domestic product (GDP). It leads to an undervaluation of overall economic activity and a dilution of the value of the well-being of individuals, families, and society as a whole (Addati et al., 2018). Therefore, even if the current “equal division of property” between spouses in China (excluding the existence of fault and other factors) does not see the partner who undertakes the care work as “losing out,” the value of care work is still not given due importance. Not to mention that it is unfair to measure the value of care work in terms of the value created by the spouse working outside.
The “Opportunity Cost” as a Criterion of Compensation for Differences in the Content of the Couple’s Cooperation
According to the overall situation of the social gender division of labor in care work at the present stage, what the wife invests during the duration of the marriage is an exclusive asset, the value of which will decrease or may even become worthless when it is used for a specific purpose (Liu, 2012). In other words, engaging in care work can have certain losses, such as loss of time, diminished personal energy, increased opportunity cost, and reduced employment ability (Yang, 2014). If one spouse sacrifices the opportunity of self-development to support the development of the other spouse fully, and the other spouse requests a divorce when the economic or property gains have been created but not yet realized, the majority of the couple’s joint property may have been converted into the capacity of the supported spouse, with no or less joint property left to be divided, which is far from sufficient to compensate for the loss of the self-sacrificing spouse’s property interests and the economic benefits he or she could have shared from the marriage. In contrast, the other spouse may, after the divorce, gain significant development and substantial economic income based on the capacity accumulated during the marriage (Y. Chen, 2015).
To summarize, we can describe the discrepancy between the “optimization” and “depletion” of the individual’s human capital as an “opportunity cost” (X. J. Li, 2024). The wage of a family member engaged in household work for the same amount of time invested in market labor is considered the opportunity cost of care work. Because of the ease of obtaining data, opportunity cost is always considered as one of the most important methods to evaluate the value of care work (Murphy, 1976). That is to say, in recognition of the fact that both work outside the home and care work inside the home are joint efforts by both spouses to live together, there is indeed a significant difference in the impact of the two forms of “joint effort” on the “opportunity cost” of the individual, which is also the main point of the provisions of the Civil Code on care work. The judiciary does not recognize that the reduction in the amount of compensation for care work is a concrete expression of the social construction of gender (It is the wife’s responsibility to do the care work.). In this sense, the inequitable gender construction seems to create a vicious circle of “perfection” in the microcosm of care work: The social culture (both in the work and family spheres) naturally recognizes women as the bearers of care work, so that the balance in the division of community property in divorce seems to take into account their concerted efforts. Even if the law provides for care work compensation, this must be based on the premise that the other spouse benefits (is better off) and that the amount of compensation should not be excessive. After all, women are not given preference in the workplace, regardless of whether or not they undertake care work (not to mention the fact that they are expected to undertake care work). This undervaluing of the opportunity cost of care work further leads to the social and cultural entrenchment of the image of women as the bearers of care work. Thus, the cycle is formalized.
Confronting the value of care work and increasing its amount (which represents the value of opportunity costs) is not only a way to protect the vulnerable in the case but also an opportunity to break the vicious cycle of gender entrenchment in society. For decades, feminist economists, civil society, and care advocates have proposed a clear set of solutions named the “4Rs”—recognize, reduce, redistribute, and represent in order to make care work visible and valued (Fälth & Blackden, 2009). The author is not naive enough to suppose that solving a single problem of care work compensation will make everything “fine,” but this micro-entry point does help us to confront the double labor (both work and family) that the female group is undergoing with positive corrections to it.
Value Orientation and Evaluation of Compensation Standards for Care Work
Although potential “opportunity capital” has received much attention from academics, there are still significant obstacles to its application in practice. One scholar suggests that there are still insurmountable obstacles to the valuation of human capital in the current situation. In particular, there is a great deal of uncertainty as to whether the value of the husband’s human capital will be realized. In contrast, the market value approach may undervalue the wife’s care work (Liu, 2012). Returning to the normative text of care work compensation provisions in the Civil Code, the avoidance of the amount of compensation is somewhat justified. It emphasizes that care work compensation is based on the “benefits” of the other spouse and not on some objective economic benefit based on the value of the work.
The main reason courts are reluctant to use the market price of the domestic sector to determine the amount of care work compensation in judicial practice is because of the “love” involved in it. The “prisoner of love” framework also provides supporting evidence that the intrinsic caring motives of care workers allow employers to more easily get away with paying care workers less (England, 2005). We undoubtedly admitted that such care work, which may be based on “love,” is more likely to benefit the whole family during the marriage. However, when the marriage breaks down, the “benefit” strongly depends on the person and cannot be divided with the same precision as tangible property. In other words, when the marriage breaks down, the “benefits” of the whole family are transferred to one of the spouses (the one who does not undertake the care work or does it less). Not only does the benefit not end with the dissolution of the marriage, but it is also likely to reinforce the social exclusion of women in employment. The economic value of care work compensation is then reflected in the economic formulation of a certain amount of the future value of the “benefit” for the party who has not or less undertaken it, and thus as compensation for the visible future losses of the party who undertakes it, the “opportunity cost” as we mentioned above. In this sense, the independent claim for care work compensation goes far beyond the division of community property at the dissolution of the marriage. However, it is a social recognition of the contribution of care work to the family on a value level.
From this perspective, the solution to the problem of “potential economic benefits” arising from human capital, such as academic qualifications, professional qualifications, and even resources and contacts, should not be focused on expanding the scope of community property but on supplementing and improving the divorce remedy regime. If the marriage continues, the care work will be “incorporated” into the joint property of the spouses. Nevertheless when the marriage breaks down, in addition to the division of the community property, we must separate the family benefits from the individual benefits to a certain extent to see the difference in the content of their collaboration. In other words, it is necessary to consider not only the compensation of the value of the contributor’s care work but also the compensation of his/her loss in supporting the development of the recipient’s education and career. Of course, in addition to the length of the marriage (M. F. Li, 2011), the scholar also suggested that if the recipient of the “human capital” has not yet earned a realistic economic income and has no property to compensate, he or she may be compensated in installments after the divorce (W. Chen & Cao, 2010). In contrast, judicial practice treats it differently, using the disadvantage of the recipient’s professional or economic development as a diminishing compensation factor (i.e., Case J). Many scholars have also suggested other specific factors to be considered, such as the contribution made by the right holder to care work during the marriage, the joint property of the spouses shared by the right holder, and the earning capacity of the obligor (the economic resources that he or she can have or may have in the foreseeable future) (Gao, 2004). Care work can be more than equated directly with market-based domestic services, which has been a consensus in most studies. After all, the relationship between a spouse and the family is unlike that of a domestic servant to an employer. The spouse’s contribution to the household work is also more than simply completing tasks, achieving goals, and getting paid; in the meantime, the amount of effort put into doing the household work is far greater than that of the average domestic servant (Yan, 2013). In conclusion, financial compensation for care work in divorce is neither a contractual relationship under property law, nor a payment for labor, even nor an emotional consideration, but an auxiliary property means of combining the potential resources and abilities developed by one party as a result of being exempt from or less likely to undertake care work, and thus compensating the other party for its losses (H. Y. Wang, 2013).
Conclusion
Although there are still controversies over specific issues, such as the standard of care work compensation, a consensus has been reached on admitting the value of care work, which provides a solid theoretical basis for discussing the issue of financial compensation for care work in a legal sense. Because of gendered social norms that view unpaid care work as a female prerogative, women in marriage spend an essential part of their day meeting the expectations of their domestic and reproductive roles. In addition to their paid activities, this creates a “double burden” of work for women (Ferrant et al., 2014). Even though the situation has improved with the level of education and age structure, women are still the primary providers of care work. Like quicksand, they trap women in a self-reinforcing cycle of income and time poverty (Coffey et al., 2020). Hence, safeguarding the economic interests of the spouse who undertakes care work in the event of divorce is not only an expression of equality in the marriage relationship but also a matter of gender justice at the social level.
Confronting the meaning of care work compensation and determining its reasonable amount is the key to changing this vicious circle. While breaking down the public-private boundary of care work is constructive, the core of the issue is how to implement the concept through institutional regulations. This article takes the subsequent “benefit” of care work for the whole family and the other party as a starting point. It balances the specific indicator of opportunity cost to complete the practical implementation of care work compensation. Care work should not be recognized simply and directly in terms of market value but should be equated with the economic value of the “opportunity cost.” That is to say, an economic formulation of a certain amount of the value of the period of “benefit” of the party who has not performed or has performed less care work, which in turn serves as compensation for the visible future losses of the party who has performed the care work. The idea of requiring a husband to continue to pay his wife for her previous care work after the divorce is also an alternative route, even though this model more or less ignores the specific enforceability behind the legal provisions. The widespread community property regime in China also imposes an external constraint on available methods of care work compensation. In the Chinese context, some more complex situations may arise if the compensation is to be prolonged. When the original spouses re-enter a new marriage, the relationship between this compensation and the common property of the new family needs to be analyzed and studied in more depth.
Footnotes
Acknowledgements
Over the course of our researching and writing this paper, we would like to express our thanks to all those who have helped us. First, we would like express my gratitude to all those scholars, from whose articles I benefited greatly. Second, our warm gratitude also goes to our friends and family who gave us much encouragement and financial support respectively. Moreover, we wish to extend our thanks to the library and the electronic reading room for their providing much useful information for our research.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
Ethical Approval
We confirm that neither the manuscript nor any parts of its content are currently under consideration or published in another journal. At the meantime, all authors have approved the manuscript and agree with its submission to sustainability.
