If a couple separates and ends up in court to finalise their property settlement, the Family Law Act 1975 (Cth) requires the court to consider, among other things, the contributions that each party has made during the marriage or de facto relationship.
The Full Court of the Family Court of Australia recently handed down its decision in the keenly watched case of Fields & Smith. In its judgment, the Court considered at length the status of "special contributions", and how it should assess the contributions of income or capital that one party has made against the contributions to the home or to the welfare of the family that the other party has made. The Court ultimately confirmed that there is no binding rule of "special contributions".
Special contributions are where one party has contributed something that is of a rare and unusual nature and that is over and above what an everyday person could contribute. For example, in the early 90s, the Australian artist, Brett Whiteley, argued that his special talent as an artist had meant he had made contributions to the relationship that were over and above what an everyday husband would have been able to make. He argued that as a consequence, his contributions should be given extra weight when the Court was considering how to divide up the couple's financial assets. In that case, the Court agreed with Whiteley.
Debate has raged in both Australia and overseas as to whether the concept of "special contributions" exists and, if so, when this should be applied to a couple's property settlement. In Australia, the Family Law Act does not currently make any provision for special contributions. However, as far back as 1984, the High Court in Mallett v Mallett made clear that Family Court judges cannot necessarily assume a 50/50 split of assets when a couple separates. They are required to assess the contributions that each party has made, as well as taking into account each party's future needs.
The Fields & Smith decision confirms the line of authority coming from Family Court decisions over the past couple of years. Ultimately, it is still possible to make an argument that one party's contributions are worth more, however the Family Court has demonstrated that it is increasingly less willing to give significant weight to "exceptional" contributions, in contrast to the glory days of Whiteley.