Heather Souter | 20th April 2017

A marriage of two halves


Heather Souter | 20th April 2017

A marriage of two halves

Even as a lifelong Saints fan I would agree with many that Ryan Giggs is a football legend. His ability on the pitch simply cannot be called into question … although it seems that, within his marriage, he appears to have made a few controversial decisions.

I do not propose to dwell on the indiscretions which, despite Giggs’ best efforts, are now common knowledge; however, his behaviour makes it ‘game on’ in the resulting matrimonial proceedings.

Matrimonial court proceedings tend to encompass both divorce and financial remedy proceedings and it should be noted that, whilst these are distinct, they do run in parallel and come together along the way. Ryan and his wife, Stacey, now find themselves turning their attention to the latter.

Within them, Giggs will no doubt focus on the financial contributions he brought to the marriage whilst Stacey will say that her domestic contributions as wife and mother are of equal value. He will attempt to join the unique club of husbands who wish to add to their trophy cabinet the title of ‘man who made special contributions!’.

To understand and consider the significance of this, we need a little law (I’ll try to keep it light, promise) … when considering a financial settlement the court shall have regard to all of the circumstances of that particular case. Legislation also provides a number of matters (or factors) the court shall consider in exercising its powers, one of which being:

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.’

By considering and applying these factors, the court has developed a number of principles and concepts to include the ‘yardstick of equality’ and ‘special contribution’ to name two of many.

The ‘yardstick of equality’ (which it has been stressed should be viewed as an aid, not a rule) has been developed to prevent gender discrimination and to assist in preventing any bias between the contributions and effort of the breadwinner and homemaker. When you consider the wording of the legislation above, this seems only fair, right?

However, it also follows that there will be circumstances in which a departure from the yardstick of equality will be necessary to achieve fairness. And this is where ‘special contribution’ comes in.

As a concept, ‘special contribution’ has had limited success and there are only a handful of cases in which there has been an unequal division of assets because of it (only three, in fact). As recently as last week, the Court of Appeal considered the concept in the case of Work and Gray and, in doing so, explored its development and application.

Briefly, the appeal was being brought by the husband (Mr Work) who sought to overturn an initial decision to split the marital wealth equally between himself and his wife (Ms Gray). Mr Work sought 61% of the total assets (an impressive £180 million) and he justified such inequality based on his unmatched contribution to the family wealth. Not unsurprisingly the wife argued the initial judge had been correct to say that Mr Work and Ms Gray were entitled to an equal share of the marital wealth.

In reaching its decision, the Court of Appeal considered and reviewed previous decisions and concluded that the number of cases in which special contribution will be relevant is likely to be small in number (and be restricted to cases of significant wealth).

Furthermore, it was agreed the existing guidance is certain and the initial judge simply stayed loyal to it. In this way, headlines such as ‘divorce case makes ‘special contributions’ harder to prove’ and ‘the millionaire divorce case that’s just changed everything for stay-at-home mothers’ are simply misleading; the approach of the court and the rationale behind it has not changed over the last decade or so.

This is surely evident from the fact only three reported cases in the super wealth bracket have resulted in a departure from equality and is supported by very clear statements from our judges that ‘… special contribution remains a legitimate possibility but only in exceptional circumstances …‘ and

Parties should not seek to promote a case of ‘special contribution’ unless the contribution is so marked that to disregard it would be inequitable. A good reason for departing from equality is not to be found in the minutiae of married life.

These statements, the history and development of the concept and the fact the Court of Appeal dismissed Mr Work’s appeal as recently as last week, suggest to me that Giggs is up against it and his legal team will need to demonstrate ‘unbelievable tekkers’ to achieve the goal he is aiming for.