Last month the Court of Appeal released its judgment in Work v Gray, a case involving a husband who sought to argue that the financial award made to his wife ought to be lower due to his "special contribution" to the marriage – he had amassed about £144m during his career working for the private equity fund, Lone Star.
He was unsuccessful. His wife, who had been responsible for caring for the parties' two children and supporting her husband in her role as "home-maker", was awarded 50 per cent of the assets.
On the same day it was reported across the national press that football coach Ryan Giggs will seek to deploy the same argument to drive down his wife's claim to half the marital pot, presumably on the basis that his exceptional talent on the pitch was such that it cannot be ignored.
The principle of special contribution raises interesting questions about how the role each spouse has played during the marriage should be considered in financial disputes during divorce.
England and Wales is known to be one of the most generous jurisdictions in the world; London in particular has developed a headline-grabbing reputation as the "divorce capital of world". This arose from the landmark case of White v White, which brought in the principle that where each party's financial needs can be met by the assets available, the starting point for division is 50:50.
The court has a wide discretion when making financial orders and must consider a range of factors. One is the contribution both the husband and wife have made. The "yardstick of equality" was introduced to highlight the need to avoid discrimination in the weight given to the parties' respective contributions. Staying at home to care for the children is as important as generating millions in the City.
Family lawyers will be acutely aware, however, that when you explain this to the breadwinning spouse, their reaction is not usually to commend the law for its fair-mindedness. They are usually at best disgruntled and, at worst, outraged that their “nanny-assisted other half” is considered to have made as important a contribution as they have and, moreover, likely to be entitled to a healthy slice of it.
This focuses the mind back to a line from the wedding service vows most couples married in the Church of England still make: "All that I am I give to you, and all that I have I share with you." Unsurprisingly, this is often overlooked when the relationship breaks down.
On marriage, you enter into a partnership; you share responsibilities and make joint decisions about how and where you will live, whether you want children and how they should be raised. The sad truth is that during litigation it often feels like every man or woman for themselves and the "he said, she said" of the past becomes evidence used to bolster the barristers' submissions.
It was accepted in White, that equality could be departed from for good reason. Over the years, various arguments have developed enabling parties to try to convince the court that the award to their spouse ought to be less than 50 per cent. A favourite of (usually) very wealthy husbands is what is known as "special contribution", which involves arguing that their contribution is so significant that the award should be increased in their favour.