It is of course not unusual that one party brings far more money into a marriage than the other. In such a case they may feel that they should be entitled to more on divorce.
But are they likely to be awarded more?
To answer the question we must begin with one of the basic principles guiding the division of assets on divorce: that the court must avoid discriminating between the husband and the wife, and their respective roles within the marriage.
Thus, for example, the court will in general consider the financial contribution of a ‘bread-winner’ party to be equal to the contribution of a ‘home-maker’ party. In other words, it is not just about the money each party brought into the marriage.
But what if a financial contribution of one party was really special? Would that be enough to justify them receiving more?
The simple answer is that it could be, but it is unlikely.
This can be illustrated by a case that reached the Court of Appeal in 2017.
In the case the husband was appealing against a decision that he and the wife were each entitled to half of the assets on divorce, as he felt that his special financial contribution entitled him to more than half (he claimed 61%).
The Court of Appeal agreed that a ‘special contribution’ argument could succeed. However, to do so the circumstances had to be wholly exceptional, such that it would not be fair to disregard the special contribution. The amount of the wealth alone may be so extraordinary as to make it easy for the party who generated it to claim an exceptional and individual quality which deserves special treatment. Often, however, he or she would need independently to establish such a quality, whether by genius in business or some other field – a windfall is not enough.
In this case the husband’s contribution was $225 million, the entirety of the marital wealth. However, the Court of Appeal did not find that sum to be sufficient to entitle the husband to more than half – his contribution was not sufficiently exceptional, such that it would be unfair to ignore.
Putting it another way, the judge who made the original decision considered that there was not such a disparity between the contributions of the husband and the wife (including her moving to Japan when the husband’s work took him there) that it would be unfair to disregard the husband’s contribution. This was a decision to which the judge was entitled to come.
In short, as the Court of Appeal indicated, the concept of special contribution is potentially relevant in only a very small number of very exceptional cases. This may of course come as a disappointment to some, but hopefully the knowledge will deter them from wasting considerable legal costs upon a fruitless line of argument.
You can read the full judgment of the Court of Appeal here.
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