or Statistical, legal and academic gender bias: the case of the use of the alimony scale by the Courts of Appeal while the Court of Cassation has censured this practice.
In March 2012, a statistical study by the Ministry of Justice showed that appeal judges tended to apply the scale of the Ministry of Justice to set the amount of the Contribution to the Maintenance and Education of the Child, known as child support (Sayn, Jeandidier, & Bourreau-Dubois, 2012): "It therefore appears overall that the indicative reference table is in several respects validated by this analysis of the previous practices of appeal judges."
However, the reference table (or scale) of the Ministry of Justice defines an amount of alimony which is in contradiction with the law, by relying only on the following three criteria:
- the net monthly income of the debtor parent (before tax deduction)
- the type of visiting and accommodation rights (reduced, classic or alternating)
- the number of children concerned
This scale has no legally binding value (quite the contrary) and suffers from several pitfalls that violate Article 371-2 of the Civil Code. Indeed, according to Article 371-2 of the Civil Code, "each parent contributes to the maintenance and education of the children in proportion to their resources, those of the other parent, as well as the needs of the child". There are therefore three criteria:
- the resources of the debtor parent
- the resources of the creditor parent
- the child's needs
In this regard, on 23 October 2013, a year and a half after the publication of the study, the Court of Cassation would censure the use of the scale to set maintenance payments, precisely because this scale took into account neither the needs of the child nor the contributory capacities of both parents (which also depend on the charges).
In short, we have here a paradox of great irony: here is official statistical proof from the Ministry of Justice that the income of the creditor parent, the parents' expenses and the needs of the child are not sufficiently or not at all taken into account in the determination of child support by the Courts of Appeal applying the scale of this same Ministry of Justice, in contradiction with the case law of the Court of Cassation and the Civil Code.
It is important to keep in mind the gender disparities in child support: in 2012, when the child lives with the mother following a divorce, child support was paid in 84% of cases, while this figure was only 50% for resident fathers (Belmokhtar, La contribution à l'entretien et l'éducation de l'enfant, deux ans après le divorce, 2016). In the same vein, 97% of debtor parents are fathers (Belmokhtar, 2014).
We will therefore examine more closely this statistically documented judicial bias, the bias of the researchers who carried out the study and the bias of the Ministry of Justice which persists in disseminating this scale which is also promoted by jurists, particularly lawyers.
Use of the Ministry of Justice scale is illegal according to the Court of Cassation
The cassation judge states in his case law: “Whereas, in order to order Mr. X… to pay a contribution to the maintenance and education of the child, the judgment states, on the one hand, that the reference table “indexed” to the circular of April 12, 2010 proposes to retain for a debtor, father of a child, with a taxable income of 1 euros per month and exercising a “classic” right of reception a monthly contribution of 500 euros, on the other hand, that the exercise of a restricted right of reception increases, in a non-negligible way, the charges of the parent at whose home the child resides;
That by basing its decision on a reference table, even if it was annexed to a circular, the court of appeal, which was responsible for setting the amount of the disputed contribution taking into account only the contributory capacities of the child's parents and the child's needs, violated, by false application, the above text"
Court of Cassation, Civil Chamber 1, October 23, 2013, appeal no. 12-25301.
Judicial bias highlighted by the study
Sayn, Jeandidier and Bourreau-Dubois (2012) write: "A statistical analysis of the practices of appeal judges largely validates the choice of criteria used for the scale. The application of this scale results in average and median amounts close to those of the appeal judges." In other words, the appeal judges validated a scale that violated the law, according to the cassation judge himself!
The authors show in substance, with their Table 1 which contains the results of four statistical regression models to measure the link between explanatory factors and the amount of alimony, that the determining factors in the determination of the contribution by the Courts of Appeal are first and foremost - and by far - the income of the debtor parent, then the mode of residence and visitation and accommodation rights and the number of children, but we can see "ns" i.e. statistically "not significant" for the income of the creditor parent, which is in contradiction with Article 371-2 of the Civil Code as we have already seen. These authors from the academic world thus confirm: "Thus, the appeal judges do not seem to take into account the income of the creditor parent" (Sayn, Jeandidier, & Bourreau-Dubois, 2012).
The fact that the debtor parent receives capital income is also statistically significant.
The same goes for the charges (especially) of the creditor: we can read "ns" i.e. not significant, as regards the determination of alimony! In the same way, the fact of living as a couple hardly counts while this factor should influence the amount owed since in this case, the charges are shared within the household, by convention in half. The academics thus write: "In addition, perhaps the most important information from this second regression is the small increase in the adjustment coefficient (adjusted R²): taking into account additional objective information adds little to the understanding of the variance of the CEEE amounts, which supports the choice of the reference table to limit itself to only four parameters".
The child's needs are not even taken into account in the statistical model!
Interestingly, in model 3, we see a gender bias, with fathers being penalized: with comparable characteristics, being a debtor father leads the courts of appeal to set a higher amount of alimony by around fifty euros. However, this bias disappears in model 4 once the parties have made proposals regarding the amount of alimony.
The bias of the researchers who carried out the study
Contrary to what has already been explained regarding the illicit nature of the application of this scale, the three researchers do not formulate any criticism on this point, but on the contrary go so far as to claim: "The construction of the reference table is based on article 371-2 of the Civil Code, on some economic and legal principles and on the desire to propose an optional and simple to use tool, so that it can be easily mobilized.
The child's needs (maintenance and education costs) are assessed based on the economic concept of the cost of the child, which corresponds to the additional income that a family with children must have in order to have the same standard of living as a family without children.
However, not only have we seen that the needs of the child are neither taken into account in the scale nor in the case law of the Courts of Appeal analyzed by these three authors. But above all, the reference table is not based on article 371-2 of the Civil Code, but violates it as the Court of Cassation said.
Certainly, at the time of writing their article, the researchers were not aware of this ruling which was to be published only the following year, but they could realize by simply reading article 371-2 of the Civil Code that the scale (but also the appeal judges) ignored the income of the creditor parent, did not carry out an analysis of resources and expenses and, moreover, did not carry out any explicit numerical assessment of the child's needs.
However, the authors of the statistical article claim that the reference table implicitly integrated the cost of the child from the equivalence scales estimated by INSEE, from the so-called modified OECD equivalence scale (Hotte & Martin, 2015). However, these equivalence scales are criticized in the literature for their lack of realism (Ben Jelloul & Cusset, 2015b). The actual expenditures for an additional child in the household do not necessarily correspond to the use value that the child benefits from, due to the redeployment of resources, but also the existence of collective goods within the household: an office room can be transformed into a bedroom, food waste can be reduced as well as luxury or leisure consumption (restaurants, travel), sharing pre-existing goods such as a garden, a vehicle or a garden does not add additional monetary cost despite the opportunity cost in the case of the office (Comanor W., 2017). In the United States, the estimate of the additional cost of real annual expenditures for a child in households with children compared to households with children would be well below the estimates by equivalence scale, i.e. two to three times lower (Comanor, Sarro, & Rogers, 2015).
Sayn, Jeandidier and Bourreau-Dubois (2012) thus confirm that the child support calculated by the scale depends mainly on the income of the non-resident parent: "Knowing that, in the reference table, the relative cost of the child does not vary according to the level of income of the parents, it is sufficient, to calculate the CEEE, to apply the rate corresponding to the income (net of the amount of the RSA, to ensure that the debtor is not placed in an unsustainable financial situation) of the debtor parent alone. The amount obtained is then adapted according to the type of accommodation (standard or reduced visitation rights, alternating residence)."
The trio who wrote the article even argue for not complicating the scale, in other words for an illicit practice, by limiting themselves to its three criteria to which they add the age of the child: "the parameters of the reference table are effectively used by judges, complicating the table by adding additional parameters is not appropriate, there are many sources of inequity that a scale is likely to reduce." Thus arguing for an illegal practice according to the Court of Cassation, these researchers reveal their motivation: to use the Ministry of Justice's child support scale to reduce alleged inequities.
Correct the bias of the scale of the Ministry of Justice, to comply with the case law of the Cassation judge and article 371-2 of the Civil Code
The parent with visiting and accommodation rights, if they exercise them in a traditional and regular manner, assumes expenses for the benefit of their child, whom they see 25% of the time, expenses to be taken into account. This non-resident parent sometimes also contributes to exceptional expenses or assumes travel expenses due to geographical distance. The resident parent assumes 75% of the expenses, which justifies the payment of maintenance in proportion to the resources of the parties.
For example, if the debtor parent earns 5000 euros per month and if the resources after deduction of expenses such as income tax are 3000 euros for the debtor parent and 2000 euros for the creditor parent, while before deduction of expenses his or her income amounts to 3000 euros, the respective percentage of resources of each in the total resources of the couple is respectively 60% (3000/(3000+2000)) and 40% (2000/(3000+2000)). If the resident parent earns 60% of the resources of the parental couple, but already directly assumes 25% of the expenses, there is therefore a shortfall of 35% (=60%-25%) to be paid to the resident parent. This percentage must obviously be adapted according to the situation.
Rp: income of non-resident parent (5000 euros)
Rm: income of the resident parent (3000 euros)/
Ip: taxes of non-resident parent (800 euros)
Im: resident parent's taxes (50 euros)
Cp: charges of non-resident parent (1200 euros)
Cm: charges of the resident parent (950 euros)
Ap: social assistance for non-resident parents (0 euros)
Am: social assistance for resident parents (0 euros)
Dp: direct expenses for the benefit of the child by the non-resident parent (175 euros)
Dm: direct expenses for the benefit of the child by the resident parent (525 euros)
Tp: travel costs related to geographical distance payable by the non-resident parent (0 euros)
Tm: travel costs related to geographical distance payable by the resident parent (0 euros)
P: alimony
It should be noted that the resources of the non-resident parent once the charges have been deducted are:
Rp-Ip-Cp+Ap=5000-800-1200+0=3000
It should be noted that the resources of the resident parent once the charges have been deducted are:
Rm-Im-Cm+Am= 3000-50-950+0=2000
The resource ratio after deduction of charges is equal to 3000/2000=1,5 or 60%/40%=1,5.
The needs of the child are for example for a three year old child:
Dp+Dm=175+525=700
RR: ratio of resources of the non-resident parent to the resident parent
RR=(Rp-Ip-Cp+Ap)/(Rm-Im-Cm+Am)
RC: contribution ratio of non-resident parent to resident parent
RC=(Dp+Tp+P)/(Dm+Tm-P)
r: equilibrium ratio equalizing the ratios RR and RC such that r=RR=RC
We look for P in the equation such that:
r=(Rp-Ip-Cp+Ap)/(Rm-Im-Cm+Am)=(Dp+Tp+P)/(Dm+Tm-P)=RC=RR
The idea here is that for every 1 euro of resources of the resident parent, the non-resident parent has r euros of resources. Therefore, for every 1 euro of expenditure of the resident parent for the benefit of the child, the non-resident parent must spend r euros for the benefit of the child.
The solution to this equation is simply:
P=(r.Dm+r.Tm-Dp-Tp)/(1+r)
This is how we can calculate the fair alimony respecting the ratio of resources of the parents.
P = 245
The alimony amounts to 245 euros for the child's needs which are in this example:
Dp+Dm=175+525=700
In this example, the ratio noted r is equal to 1,5 (3000/2000).
With the scale of the Ministry of Justice, the debtor parent would have paid 594 euros in maintenance, whereas we see that after deduction of charges and in proportion to resources he only owes 245 euros per month.
Bibliography
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