Work v Gray: what makes a contribution ‘special’ in divorce proceedings?

In its eagerly-anticipated judgment in the case of Work v Gray [2017] EWCA Civ 270, the Court of Appeal has confirmed that a party’s ‘special contribution’ to a marriage is one such good reason to depart from equality, but only where that contribution is so ‘exceptional’ that it would be inequitable to disregard it.

divorce family

Work v Gray: the background

Marriage is a partnership of equals. In the case of White v White [2001] 2 FLR 981, our most senior judges recognised that there is ‘no place for discrimination between the husband and wife and their respective roles’ when it comes to determining a ‘fair’ division of the matrimonial property upon divorce. The starting point is that assets built up during a marriage should be split 50:50, unless there is ‘good reason’ to order otherwise.

Randy Work and Mandy Gray were married in their native US in 1995. Mr Work made an enormous success of his role at private equity firm, Loan Star and as a result of his hard work, the total profits invested was over $700m. By the date of the hearing, in the first instance before Mr Justice Holman, the marital ‘pot’ totalled $225m.

In his decision, Holman J said that Mr Work’s claim for special contribution did not have the requisite ‘exceptional and individual quality’ to justify an unequal split of the pot. Mr Work had undoubtedly worked incredibly hard and achieved fantastic success in his field, but he was ultimately an employee whose achievements owed much to being in the right place at the right time.

It was argued on appeal that the quantum of wealth generated in and of itself, provided it was ‘unmatched’ by the spouse, could sometimes (as in Mr Work’s case) be so significant that to ignore it would result in an ‘unfair’ outcome.

Work v Gray: the decision

The appeal judges agreed that in some cases the amount of wealth generated by one party will be extraordinary enough to deserve special treatment. Often, however, he or she will need independently to establish an ‘exceptional’ quality responsible for the contribution. It need not be a contribution of ‘genius’ or be ‘unmatched’ by the other spouse, but it should be unique. Holman J had not erred in finding Mr Work’s contribution was not sufficiently unique to justify an unequal division of the assets.

Some family law practitioners had hoped that the judgment would provide a financial threshold above which a special contribution would be self-evident, or would otherwise offer commentary on what other exceptional qualities these special contributors may exhibit. Others who argued the concept of a special (financial) contribution is discriminatory towards the other (often female) spouse, had hoped the court would abolish the concept altogether.

The appeal judges did none of the above. However, that is not to say the judgment is of little value to students and practitioners alike. Only the most unique of contributions will give the court ‘good reason’ to depart from the ‘yardstick of equality’. The appeal judges also discouraged special contribution cases that are run on ‘gendered’ lines.

The court’s endorsement of the je ne sais quoi quality of the ‘special contributor’ almost certainly means Mr Work’s case will not be the last of its kind to come before some of our most senior judges. Given the vast sums of money involved in these cases, there is often more to be gained by achieving an unequal split of the marital pot than there is to be lost (at least financially) by litigating the case to the very end… just ask Ryan Giggs.

Sarfraz Ali is a family associate at Withers.