All children are taught to share and all children have an innate sense of what this fairness looks and feels like. Children who grow up with siblings are especially aware of the fairness or unfairness of decisions made on their behalf, or imposed on them, and will often, if encouraged to, come up with very fair ways of sharing time or belongings.
Children cannot understand, especially young children, why courts and divorce don’t work in the same way.
Many a child is familiar with the concept of one doing the cutting of a a cake or the dishing up of ice cream whilst the other child/ren stand by waiting eagerly for their turn to choose which portion they will claim.
It’s known as the Divide and Choose principle and is based on envy-free decision making. If you’re the one dividing you can’t complain about what the other ones chooses, and if you choose you can’t complain about the cutting.
Divide-and-choose is envy-free in the following sense: each of the two partners can act in a way that guarantees that, according to her own subjective taste, her allocated share is at least as valuable as the other share, regardless of what the other partner does.
Here is how each partner can act:
- The cutter can cut the cake to two pieces that she considers equal. Then, regardless of what the chooser does, she is left with a piece that is as valuable as the other piece.
- The chooser can select the piece which she considers more valuable. Then, even if the cutter divided the cake to pieces that are very unequal (in the chooser’s eyes), the chooser still has no reason to complain because she chose the piece that is more valuable in her own eyes.
To an external viewer, the division might seem unfair, but to the two involved partners, the division is fair – no partner envies the other.
If the value functions of the partners are additive functions, then divide-and-choose is also proportional in the following sense: each partner can act in a way that guarantees that her allocated share has a value of at least 1/2 of the total cake value. This is because, with additive valuations, every envy-free division is also proportional.
The protocol works both for dividing a desirable resource (as in fair cake-cutting) and for dividing an undesirable resource (as in chore division).
Divide and choose assumes the parties have equal entitlements and wish to decide the division themselves or use mediation rather than arbitration. The goods are assumed to be divisible in any way, but each party may value the bits differently.
The cutter has an incentive to divide as fairly as possible: for if they do not, they will likely receive an undesirable portion. This rule is a concrete application of the veil of ignorance concept.
The divide and choose method does not guarantee each person gets exactly half the cake by their own valuations, and so is not an exact division.
Now, where were we? Ah yes, Family Law.
Imagine you had to submit a plan for who your children would live with day-to-day and who they would spend time with and when.
Now imagine that your ex-partner got to choose which side of that contact plan they wanted. With a system like that you’d never need to set foot inside a court room ever again – so long as you weren’t a danger to your children that is.
And at least your children would know you’d both been fair and that you’d operated by the same rules you make them abide by.
I’ll leave you with that thought to chew over.
In a Family Law system designed for combative parents there is no real allowance for the views of children and any understanding of how Family Law ultimately impacts on children most of all.
We speak for the children in Family Law so that, finally, the children have a voice.