What counts as a ‘contribution’ in divorce proceedings?

When it comes to your divorce, it is natural that you will want your contributions to the marriage to be recognised and reflected in your eventual settlement. In UK divorce law, ‘contributions’ will include both:

• Financial contributions – for example, salary, rent or mortgage payments, bills, contributions to living expenses or school fees
• Domestic contributions – for example, taking care of any children and contributing to the family’s welfare in non-financial ways

This means that even if one of the spouses has made the lion’s share of financial contributions over the duration of the marriage, they are not automatically entitled to a lion’s share of the assets. In fact, the primary aim of any divorce court will be to divide the matrimonial assets equitably and to leave both parties on an equal standing, irrespective of their role in the family. The only exception to this will usually be in the case of a short marriage, where financial contributions may carry more weight.  

Indeed, a recent landmark case has made it clear that domestic contributions should not be undervalued simply because they cannot be quantified in the same way as financial ones. In February 2020, the Court of Appeal overturned an original High Court ruling that awarded the wife and sole carer for the couple’s disabled child just 29% of the couple’s total wealth. The judge said: “In this case, the wife’s enormous contribution to the welfare and happiness of the family, as the homemaker and principal carer of [the son], both during and after the marriage, has been and will be incalculable.”

There are exceptions to every rule

Due to the complex nature of divorce, there will inevitably be exceptions to every rule. Case law shows us that some contributions and assets will not be considered as part of the eventual financial settlement, which could leave one spouse on an unequal footing. Examples include:

‘Special’ contributions

A spouse may argue that they have made an ‘exceptional’ or ‘special’ contribution to the marriage which means that they should be awarded more than half of the matrimonial assets. For example, in Cooper-Hohn v Hohn [2014], a husband who claimed that his exceptional contribution of over $1 billion to the couple’s wealth should result in an uneven settlement, was awarded 63.88% of the matrimonial assets.

It should be noted, however, that the above outcome is very rare and that a similar ‘special contribution’ claim was recently overturned in the February 2020 case referred to above.

Non-matrimonial assets

It may be argued that some assets or contributions should not be included in the financial settlement, as they were acquired either prior to the couple’s marriage or after their separation or divorce. This may include an inheritance received prior to the marriage, or funds set aside in trust.

While one of the parties may ask for them to be excluded from the divorce settlement, however, this is not a request that will always be granted. For example, if the matrimonial assets do not sufficiently provide for the future needs of the couple or any children, the judge may rule that non-matrimonial assets should also be included in the settlement.

Pre-nuptial agreements

If a pre-nuptial agreement was signed prior to the couple getting married, there may be some contributions that are protected from the financial settlement. You should be aware that pre-nuptial agreements are not legally binding in England and Wales, meaning that the court can deviate from the agreement if it believes it will unfairly disadvantage one of the parties. Nonetheless, a pre-nuptial agreement will receive serious consideration from a court in the allocation of assets in a financial settlement.

Specialist advice is vital

Understanding the various financial and domestic contributions that have been made throughout a marriage and how these contributions will impact a divorce settlement, is no easy task. This is particularly true in cases where one party has made exceptional financial contributions or where significant wealth is involved. It is vital to take expert advice from family lawyers who specialise in complex and high-net-worth divorces to ensure you receive the financial settlement to which you are entitled. For further information and advice, please don’t hesitate to email familylaw@attwaters.co.uk.