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Henry Hood discusses the inherent discrimination in special contribution in The Times Law Brief

  • May 05, 2017
  • By Hunters Law

Can divorce put a price on genius?

A clutch of recent divorce cases has considered “special contribution” in the division of marital assets. It is a concept which, so far, has only been invoked in the context of prodigious business wealth created by husbands.

Could this suggest the return of discrimination in the family courts, which was supposedly banished in 2000 in White v White?

In 2001, Michael Cowan was allowed to keep 62 per cent of his £12m assets and in the years that followed others, including the advertising tycoon Sir Martin Sorrell, were similarly favoured in relation to their ever larger fortunes. But all were dwarfed in 2014 in the divorce of Sir Chris Hohn, who was also allowed to keep the larger share of a fortune worth billions.

Next in line could be Ryan Giggs. The former Manchester United and Wales footballer had skills more of an athletic than business nature. Can he persuade the court that they were such as to entitle him to the greater share when the assets are divided with his wife?

The law seeks a fair outcome, which is easier said than done. Where children’s needs are not an overriding issue this should mean equal division of assets made during the marriage, with money-making and home-making ranking equally in the balance.

However, the court is required to assess each party’s contributions, giving rise to the possibility that the contribution by one spouse towards the creation of the family wealth has been so substantial that it is neither matched by the other’s contribution, nor equitable to disregard it when dividing marital assets. That is special contribution.

The contribution has to be quite extraordinary. Skills that are rare, but not unique, will not suffice. With each case the bar has been raised. So far, only businessmen have cleared it although even for them, the size of fortune alone (Hohn excepted) is no longer enough, as Randy Work discovered in April when his £144 million fortune failed to persuade the Court of Appeal that his contribution was the product of the near genius that is now required.

How fair is this when considering each party’s different roles? However brilliant, the wealth-creator within a family would surely struggle without the practical support at home from — as it has so far invariably been — the wife. How much wealth would be created without that? Moreover, brilliance shown in childcare and homemaking seems never to be considered a special contribution.

While they may not be the unique skills that judges now look for, is it also the case that the link between that contribution and wealth creation is only indirect? That would be a telling observation on our times.

Henry Hood is a partner and head of the family law department at the London law firm Hunters

This article was originally published in The Times Law Brief and can be accessed here

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