Special contributions: outdated and unfair? (from Solicitors Journal)

Family Law|May 20th 2015

When a relationship breaks down, one of the first discussions is inevitably about division of finances and other assets. The law in this area has been relatively stable since White v White when it was made clear that, if all parties’ reasonable needs have been met, distribution of everything else should be 50:50.

Of course, this is a starting point and isn’t appropriate in all cases, for example where non-matrimonial assets may be ring-fenced. But one important point from White v White is that (in most cases) no distinction should be made between a homemaker and a breadwinner.

This is a key element that frustrates me about the ‘special contributions’ argument. We’ve seen a number of high-profile cases, notably Cooper-Hohn v Hohn, where the husband was awarded a much greater proportion of wealth because he was deemed to have provided a contribution that was special and unmatched by his spouse.

More recently, the same argument was put forward in Gray v Work, where the husband argued that his fortune, earned working for a private equity firm in Japan, entitled him to a considerably larger portion of the marital pot than his wife. Mr Justice Holman was not impressed, I am happy to say, making the valid point that the wife had been a good homemaker, a good mother, and it was her willingness to move to Japan that allowed her husband to build a successful career; so much for the husband’s contribution being unmatched. Interestingly, the judgment also overturned a draconian prenuptial agreement, saying that the wife had not had good legal advice when it was drawn up.

The special contributions argument begs the question, what value do you put on marriage? Who is to say what makes the most significant contribution to a marriage: the stay-at-home mother, who gave up her career to bring up the children, or the husband bringing home the pay cheque? Or, indeed, the reverse scenario involving a househusband and a high-flying career woman?

It’s time the concept of special contributions was revisited. If White v White is considered good law for the majority of marital splits, where equality of both parties is the fair starting point, then the question remains, should there be exceptions for those with staggering levels of wealth?

In law, marriage is a partnership of equals, whatever abilities and skills they bring to the relationship, and, in the eyes of the law, greater value should be given to the marriage, rather than the amount of money involved.

This article was first published by Solicitors Journal, and is reproduced by kind permission

Author: Stowe Family Law

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  1. Luke says:

    “Interestingly, the judgment also overturned a draconian prenuptial agreement, saying that the wife had not had good legal advice when it was drawn up.”
    The courts can remove “Special Contributions”, they can drive a coach and horses through prenups,. they can do whatever they wish, we know that – but the end result will be inevitable in the long run – more and more people (and predominantly men as they don’t get residency) will look at the risk of marriage and simply say “No Thanks”…

  2. Andrew says:

    Equality should be the touchstone in all cases – with postponement where necessary to prevent undue hardship to children of both parties during minority. And no longer.

    Prenups should be absolutely cast-iron – like any contract between adults – again with postponement where necessary to prevent undue hardship to children of both parties during minority. And no longer.

    It’s not rocket science.

  3. Nordic says:

    Special contribution is similar to the argument that one party has done all the sacrificing. Both concepts are used to argue unequal distribution, and neither stand up to scrutiny. No judge, or anyone else for that matter, can possibly look backwards into a marriage and assign the relative value of each party’s contribution or sacrifice. Both concepts are utter nonsense and serve only to generate legal fees.
    The only reasonable standard is that both parties are assumed to have made equal contributions (and sacrifices). They should therefore share equally in the wealth created during the marriage, no ifs, no buts. By the same token, wealth created before and after the marriage or inherited should not be shared.
    Equal division of commonly acquired wealth is the default matrimonial asset regime in most European jurisdictions. If we had a similar common sense (as opposed to common law) approach here, 90% of all financial relief cases could be avoided, allowing our courts to focus on all those areas of family law which genuinely require discretion. More importantly, the certainly created by a legally binding matrimonial asset regime would massively reduce costs and eliminate a huge source of parental conflict. The only losers would be the vested financial interests in the family law legal industry and that, of course, is why nothing will change.

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