It is axiomatic that both the husband and the wife will make some sort of contribution towards a marriage, whether financial or otherwise.

Sometimes one party will consider that their contribution so outweighs the other party’s contribution as to entitle them to a greater share of the matrimonial assets on divorce.

The issue of contributions can therefore be central to the outcome of a financial remedies application.

But what is the court’s approach to contributions, and just how relevant are they likely to be?

What does the law say?

The law (the Matrimonial Causes Act 1973) requires the court to consider all the circumstances of the case when considering what financial remedy orders to make, but sets out a list of particular factors to which it should have regard.

One of those factors is “the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family”.

This therefore makes it abundantly clear that any contribution need not be financial, and specifically can include the non-financial contribution of looking after the family home and caring for the family, including of course any children.

It follows from this that the financial contribution of the primary breadwinner does not necessarily outweigh the non-financial contribution of the ‘homemaker’. Indeed, in the leading case of White v White, Lord Nicholls made the position quite clear. He said:

“In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering … the parties’ contributions.”

Special Contributions

Lord Nicholls’ comments made it clear that there should be no bias in favour of the money-earner and against the home-maker and the child-carer, but that did not deter parties from claiming that their contribution, almost always financial, was such as to entitle them to the lion’s share of the assets.

This argument became known as the ‘special contribution’ doctrine.

The special contribution doctrine was tested in the 2017 Court of Appeal case Work v Gray. In that case the marital wealth, totalling approximately $225 million, was all accumulated during and through the husband’s employment. The husband argued that this amounted to a ‘special’ contribution, which should be reflected in him receiving a larger settlement.

The case was first heard by Mr Justice Holman, who did not accept the husband’s argument. The husband appealed, to the Court of Appeal.

Dismissing the husband’s appeal, the Court of Appeal endorsed Mr Justice Holman’s summary of the principles applicable when considering a special contributions argument, including:

  1. That for the argument to succeed the characteristics or circumstances clearly have to be of a wholly exceptional nature, such that it would very obviously be inconsistent with the objective of achieving fairness (i.e. it would create an unfair outcome) for them to be ignored.
  2. Exceptional earnings are to be regarded as a factor pointing away from equality of division when, but only when, it would be inequitable to proceed otherwise.
  3. In considering special contributions the court must not discriminate against the homemaker, in favour of the breadwinner.
  4. In some cases the amount of wealth amassed by one party will 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, although there is no identified threshold that would meet such a claim.

In short, it is possible to argue that you should receive a greater share of the matrimonial assets because of your ‘special contribution’, but such arguments will only succeed in exceptional circumstances. In most cases the court will consider that the respective contributions of both parties are equal to one another, and therefore will not have any bearing upon the settlement.