Yet another special contribution case has hit the headlines, with the news yesterday that a Russian billionaire has been ordered to pay £453million to his ex-wife, or roughly 41.5% of the total matrimonial assets. The wife had claimed that the husband was worth over £1billion.
The judgement has not yet been published, the specific facts of the case are not yet apparent and neither the Husband nor the Wife were present in court for the ruling.
It has been reported however that the Husband changed his mind after initially indicating that he would try to argue a ‘special contribution’ in the marriage, the success of which would significantly affect the manner in which the assets would be divided.
The judge delivering the ruling, Mr Justice Haddon-Cave said that the Husband and the Wife had made “equal contributions to the welfare of the family”.
The case is the latest in a trend of family finance cases before the courts where one party to the marriage is claiming a special contribution. In such cases the more wealthy party (usually the husband) tries to argue that their financial contribution to the family wealth is so extraordinary that it would be inequitable to disregard it and that the court should depart from the usual sharing principle.
There have been very few successful special contribution arguments reported in the family courts and indeed only three in twelve years. Very recently the case of Work v Gray (2017) debated the concept of ‘genius’, a word which the appeal judge Holman J had said was “unhelpful”.
In Work v Gray Holman J was not convinced that the Husband was a genius and instead was in the right place at the right time with regard to his work in establishing the family wealth. Accordingly he decided that the Wife’s contribution in raising the family was equal to the financial contribution.
At the Supreme Court, the Husband’s counsel argued that instead of having regard only to the qualities of the person making the contribution, the court ought to review the size of the contribution. Further if the size was not sufficient to justify a special contribution, then the court should then revert back to the question of the individual skills of the person making the contribution.
This argument was rejected and the court ruled that if successful, it “would unfairly elevate a financial contribution above other forms of contribution”.
Hence the principle laid out 17 years ago by Lord Nicholls in the landmark case of White v White (2000) still stands firm: “it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer.”
These decisions being made by the court suggest a marked reluctance of the Judiciary to accept special contribution. It has been reported that the footballer Ryan Giggs will try and advance such an argument in his forthcoming divorce. Specific remarks made by Holman J regarding ‘highly paid footballers’ in the failed appeals of Work v Gray suggest he will struggle to succeed.
The question for the judiciary therefore is not with regard to the size of the contribution but the special individual skills of the contributor. Does the individual have that spark of genius that sets him/her apart and is that enough to justify a departure from equality? Three successful cases in twelve years suggest that such individuals are few and far between.