Special contributions: outdated and unfair?

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. SJ

Marilyn Stowe is senior partner at Stowe Family Law