Would your “special contribution” assist you on divorce?

2nd July 2018

In recent weeks, it has been reported in the media that the wife of an entrepreneur was awarded £115 million in one of Britain’s biggest divorces. However, this was much less than the 50% share that she had hoped for, so how did the husband manage to achieve a break from equality in his favour?

When couples divorce in England and Wales, and require the assistance of the court to help divide up their assets, the starting point is for the court to look at the combined pot and divide it equally between the parties. The landmark decision of White v White [2001] 2 FLR 981 made it clear that when determining financial matters between parties, the court must avoid discriminating between the husband and the wife and their respective roles. Additionally, an emphasis was also placed on eliminating the bias in favour of the money-earner over the home-maker. However, the court can depart from this 50/50 split if such deviation is fair.

In this case, the couple had been married for almost seven years and had a son. Upon separating, the wife wanted half of her husband’s fortune which equated to approximately £230 million. However, in a rare move, the Judge awarded her only 25% as he was “satisfied in this case that the husband’s contribution to the growth in the value of the business assets during the marriage comes within the concept of special contribution”[i].

So what equates to a ‘special contribution’?

This notion of “special contribution” is one that has developed over the years. It began as a recognition of “the product of genius with which one only of the spouses may be endowed”[ii]. It was later emphasised that a special contribution arose in only exceptional circumstances and required more than mere money making, there was a need to identify special business acumen and vision[iii]. The focus now is on disparity of contributions and whether the disparity is such that it would be inequitable to disregard it[iv]. These types of departure from equality are extremely rare, so much so, that this latest case is in fact only the fifth case where a special contribution has been recognised.

One question that does arise, and is yet to be tackled through the courts, is whether it is possible for a home-maker to successfully establish a special contribution. Although there has been a lot of commentary and lip service paid to ensuring that there is no discrimination between the worker and the home-maker, it is hard to envision a scenario where the requisite “exceptional and individual quality” might be demonstrated to enable a finding of special contribution on behalf of a home-maker.

Please contact a member of our family team if you would like legal advice in respect of divorce or financial remedies.

[i] XW v XH [2017] EWFC 76

[ii] Cowan v Cowan [2001] EWCA Civ 679

[iii] Lambert v Lambert [2002] EWCA Civ 1685

[iv] Work v Gray [2017] EWCA Civ 270

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