Special Contributions: ‘Genius’, Guesswork and Gender Discrimination

This article revisits the contested terrain of ‘special contribution’, and questions whether it retains any legitimate role in contemporary financial remedy jurisprudence. It argues that the concept is both theoretically discriminatory and practically uncertain.

The doctrine of special contribution has long occupied a precarious place in financial remedy law. While it is recognised in principle, it is almost never applied in practice. Described by Mostyn J as (another) ‘white leopard’ of matrimonial finance law (WM v HM [2017] EWFC 25), it is believed that nobody has succeeded in advancing such an argument since the 2014 decision of Cooper-Hohn v Hohn [2014] EWHC 4122 (Fam). The argument resurfaced most recently in DR v UG [2023] EWFC 68, [2024] 1 FLR 698, where Moor J acknowledged the husband as ‘undoubtedly a very good businessman’ ([67]), but found ‘nothing sufficiently exceptional to justify this as a special contribution’ ([68]). Yet he reaffirmed at [49] that the concept of ‘special contribution’ endures, at least until the Supreme Court intervenes.

What is considered a ‘special contribution’?

Unfortunately, there is no clear answer to this question. Judges have been notably reluctant to define the precise scope or threshold of the concept. In Cowan v Cowan [2001] EWCA Civ 679, [2001] 2 FLR 192, Mance J cautioned against an ‘over-refined analysis of the precise extent to which skill and effort may have been “special”’ ([161]). Similarly, in Lambert v Lambert [2002] EWCA Civ 1685, [2003] 4 All ER 342, Bodey J said at [69] that ‘it is not possible to define once and for all, by way of some formulaic label, the precise characteristics of the fortune-maker (or fortune-making) required in the paradigm case such as this’. As with much in family law, ‘the issue of special contribution is context specific’ (XW v XH [2019] EWCA Civ 2262 at [155]).

Still, we are not left entirely in the dark. In Cowan, Mance J described the underlying idea as one where:

‘a spouse exercising special skill and care has gone beyond what would ordinarily be expected and beyond what the other spouse could ordinarily have hoped to do for himself or herself, had the parties arranged their family lives and activities differently.’ ([161])

Thorpe J, in the same case, pointed to ‘the product of the genius with which one only of the spouses may be endowed’ ([67]), though the use of the term ‘genius’ was later criticised by Holman J in Robertson v Robertson [2016] EWHC 613 (Fam) at [54].

Later, in Lambert, Bodey J stressed that the contribution must be of a wholly exceptional nature. It must be so obviously inconsistent with the objective of achieving fairness for them to be ignored ([70]). That language finds resonance in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, where the House of Lords spoke of ‘contribution so marked that to disregard it would be inequitable’ ([67]). In Charman v Charman (No 4) [2007] EWCA Civ 503, the Court of Appeal referred to the need for ‘an exceptional and individual quality which deserves special treatment’ ([80]). This might be demonstrated by the sheer scale of wealth generated (being so extraordinary as to speak for itself) or by the nature of the contribution more generally.

In Cooper-Hohn, Roberts J offered a structured approach to assessing special contribution, posing five questions at [282]:

‘i. Can it properly be said that he is the generating force behind the fortune rather than the product itself?

ii. Does the scale of the wealth depend upon his innovative vision as well as on his ability to develop those visions?

iii. Has he generated truly vast wealth such that his business success can properly be viewed as exceptional?

iv. Does he have a special skill and effort which is special to him and which survives as a material consideration despite the partnership or pooling aspect of the marriage?

v. Would it, in all the circumstances, be inequitable for me to disregard that contribution?’

However, the clearest summary of principles comes from the Court of Appeal in Work v Gray [2017] EWCA Civ 270 at [15], which endorsed Holman J’s list at first instance:

‘(i) The characteristics or circumstances which would result in a departure from equality have to be of a wholly exceptional nature such that it would very obviously be inconsistent with the objective of achieving fairness for them to be ignored …

(ii) 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 …

(iii) Only if there is such a disparity in their respective contributions to the welfare of the family that it would be inequitable to disregard it should this be taken into account in determining their shares …

(iv) It is extremely important to avoid discrimination against the home-maker …

(v) A special contribution requires a contribution by one unmatched by the other …

(vi) 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 will need independently to establish such a quality, whether by genius in business or some other field … A windfall is not enough.

(vii) There is no identified threshold for such a claim to succeed …’

As summarised at [94], the concept requires the court to identify a significant, substantive difference that does not require exhaustive evidential investigation.

The court in Work v Gray was clear that it will not set a threshold figure for a ‘special contribution’ claim to succeed. This view was echoed by Moor J in SK v TK [2013] EWHC 834 (Fam), who stated at [45] that he was ‘certainly not intending to lay down a rule that it is impossible to make a “special contribution” if the assets are below £20 million’.

It is equally unclear from previous authorities where the line lies. The courts have accepted claims of special contribution across a broad range of asset values: £11.5m in Cowan, £546m in Sorrell v Sorrell [2005] EWHC 1717 (Fam), approximately £30m–£50m in Charman, and £870m in Cooper-Hohn. Conversely, the available assets in Work v Gray (£225m) and XW v XH [2019] EWCA Civ 2262 (£520m) were found to be insufficient to meet the threshold.

In Charman, Sir Mark Potter P offered some guidance by suggesting that ‘fair allowance for special contribution within the sharing principle would be most unlikely to give rise to percentages of division of matrimonial property further from equality than 66.6%–33.3%’ ([90]). Yet even this attempted quantification is inherently subjective. Sir Mark acknowledged the arbitrariness of the exercise and accepted that ‘instinct’ is often what drives the outcome. Similarly, in SK v TK, Moor J relied on his ‘impression’ when rejecting the claim that the husband’s contribution was of a kind it would be inequitable to disregard ([44]). The concept of ‘special contribution’ has thus become rooted in judicial perception. In essence, an arbitrary judicial exercise of ‘I will know it when I see it’.

This reliance on instinct reveals the deeper problem. While it is accepted that a discretionary regime such as family law may resist rigid, universal thresholds, the absence of any consistent anchor point makes the argument practically unworkable. Advising clients on the likely success of a special contribution claim becomes guesswork. The application of the concept risks varying ‘with the length of the [judge’s] foot’. It also lays bare the uncomfortable truth: the courts may not be in a position to develop a principled framework for ‘special contribution’ at all. They simply lack the direct, specialist insight of those who operate in the business world, and are ill-equipped to assess the ‘exceptionality’ of an individual’s acumen and vision.

This uncertainty discourages litigants from making such arguments and highlights the difficulty of proving them when they do. The point was forcefully made by Coleridge J in G v G (Financial Provision: Equal Division) [2002] EWHC 1339 (Fam), [2002] 2 FLR 1143, where he described special contribution as opening up a ‘forensic Pandora’s box’. He warned:

‘For what is “contribution” but a species of conduct? … Both concepts are compendious descriptions of the way in which one party conducted him/herself towards the other and/or the family during the marriage. And both carry with them precisely the same undesirable consequences. First, they call for a detailed retrospective at the end of a broken marriage just at a time when parties should be looking forward not back. … But then, the facts having been established, they each call for a value judgment of the worth of each side’s behaviour and translation of that worth into actual money. But by what measure and using what criteria? Negative “conduct” is one thing (particularly where it is recognisably “obvious and gross”) but the valuing of positive “contribution” varies from time to time. Should a wealth creator receive more because, eg, his talents are very unusual or merely conventional but well-employed? Should a housewife receive less because part of her daily work over many years was mitigated by the employment of staff? Is there such a concept as an exceptional/special domestic contribution or can only the wealth creator earn the bonus? These are some of the arguments now regularly being deployed. It is much the same as comparing apples with pears and the debate is about as sterile or useful.’

Without a clear, consistent and principled legal framework in place, running a ‘special contribution’ argument is no more than a calculated gamble, and often a losing one.

Its inherently discriminatory nature

In White v White [2000] UKHL 54, the House of Lords made clear that, in financial remedy proceedings, ‘there is no place for discrimination between husband and wife and their respective roles’ when assessing contributions under s 25(2)(f) Matrimonial Causes Act 1973. This principle supports the court’s general approach: that the fruits of a marriage, being the product of equal contributions (albeit in different forms), should be shared equally. But how does the concept of ‘special contribution’ sit with this commitment to non-discrimination?

One way to reconcile the two is to argue that ‘special contribution’ can apply to either spouse, regardless of whether their contribution is financial or domestic. In Charman, Wilson J at [80] attempted to justify the doctrine on this basis, stating that special contributions could be non-financial. The Court of Appeal echoed this in Work v Gray, noting that ‘such a significant, substantive difference gives rise to a special contribution irrespective of whether the contribution has been made by the husband or the wife’ ([94]).

However, Wilson J also conceded in the same paragraph that special contribution claims had so far arisen only in cases involving substantial wealth generated by business success during the marriage (Charman at [80]). While one explanation might be that such cases typically involve enough money to make the argument worthwhile, the reality is likely starker: since it is already extremely difficult for even the money earner to succeed with a special contribution claim, one can only imagine how much harder, if not impossible, would it be for a homemaker to do so.

This is clearly illustrated in Cooper-Hohn, where the husband succeeded in a special contribution claim despite the wife’s extraordinary role in both the family and the family’s charitable foundation. At [273], the judge summarised the breadth of her unpaid labour:

‘Given the extent of her involvement with the Foundation (which I have already described earlier in this judgment); her obvious devotion to and prioritisation of the family’s needs – a family of four children which included triplets; her role as homemaker and co-ordinator of all the children’s social and other needs; what more, asks Mr Pointer, could she have done? What more should she be expected to have done in order to qualify for equal treatment with the husband in terms of financial outcome? As he rightly reminds me, she was not simply a “working” wife; she was a wife who was fully engaged in fulfilling her role in the joint objective which had underpinned the marriage from its very inception. Her role in the Foundation demanded of her the skills and qualities which would have been needed in any CEO at the top of an organisation. Until the time came when the “job” grew too big for any one individual, she performed that role without remuneration and entirely for the benefit of the beneficiaries of its grants and programmes. I thought it slightly churlish on the husband’s part to say, as he did, that he did not seek to control the amount of time which she spent at work and she more or less devised her own working programme around the needs of the home and the children. I am quite satisfied that there was not a spare moment of this wife’s waking day when she was not actively engaged either in discharging her role in the home or working for the Foundation. I heard, and accept, her evidence that her day would often start in the early hours to coincide with calls which needed to be made in different time zones. She was frequently still working in her study at home after midnight when the children no longer needed her attention.’

Despite this, she fell short of matching the husband’s ‘special’ contribution. The implicit message is clear: the concept may be formally gender-neutral, but in substance, it tends to reward the financially dominant spouse, who is almost always the man, and overlooks the invisible, unpaid labour on which that financial success often depends.

The problem runs deeper than bias in outcomes. Homemaker contributions rarely come with tangible metrics. They are hard to quantify and harder still to prove, often relying solely on one’s narrative statement. As the judge in Cooper-Hohn observed at [278]–[279]:

‘The court is asked to embark upon the exquisitely difficult task of assessing how different types of contributions should find expression in qualitative assessment … Can it ever be a legitimate answer to such a case for a wife to highlight the more difficult aspects of married life with a “stellar” or “alpha” achiever? Can she point to the pressures placed on her role as wife and supporter occasioned by the quality traits often observed in individuals who achieve this level of success? Is it feasible for her to point to an increased burden in terms of family and domestic life whilst such a husband traverses the globe several times a month and works through special family anniversaries, birthdays or holidays? All these factors simply bear out the often insurmountable difficulties of trying to quantify that which is often unquantifiable.’

While the court has stated that ‘balancing the wife’s contributions including as a mother is at the very centre of this determination’ (XW v XH at [123]), the truth is that any reference to a homemaker successfully establishing a special contribution is little more than lip service. The concept of ‘special contribution’ is inherently discriminatory.

Conclusion

There is no doubt that special contribution arguments are now confined to ‘very exceptional circumstances’ (XW v XH at [124], original emphasis). This article has reviewed the authorities and demonstrated that the concept lacks practical consistency and promotes gender-based discrimination. While any definitive shift would likely require intervention from the Supreme Court, the difficulty is such that, given the current uncertain state in the law, few would pursue an appeal to that level simply to test the principle.

The doctrine of ‘special contribution’ should not continue to have a place in the future of financial remedy law. It is fundamentally at odds with the basic principle of non-discrimination. The contribution of a homemaker who tirelessly cares for the children and the home is just as ‘special’ as that of a spouse who accumulates exceptional wealth. By asking judges to wade into the often distasteful ‘minutiae’ (XW v XH at [122]) of family life to decide whose work was more ‘special’, the law invites arbitrary distinctions and undermines the core values of fairness and equality.