A recent family law case has made it even harder to successfully claim "Special Contribution" in relationship financial disputes.
For such a claim to succeed, a party must demonstrate they have employed 'special skills' or a unique talent which has resulted in a significant contribution to the overall asset pool, thereby justifying an adjustment in their favour for their "special contribution".
Court decisions recognising such claims have been criticised for over-valuing financial contributions, to the detriment of less quantifiable, but no less important contributions, such as those made in the capacity as homemaker and parent.
The recent case involved a 30 year marriage where the husband invested a large portion of the couple's superannuation fund into shares. The shares performed well and brought the value of the superannuation fund to $3.4 million at the date of separation.
The trial judge awarded the husband two thirds of the superannuation fund, on the basis that, without his 'skill' in selecting and purchasing the shares, the couples' superannuation fund would have been worth substantially less.
On appeal, the decision was overturned on the basis that the trial judge had given excessive weight to the husband's "special skills."
The special contribution doctrine has its origins in cases such as Whiteley1 where the well-known Australian artist was awarded 67.5% of the asset pool based on his 'unusual talent' which was 'instrumental' in creating his wealth.
Family & Relationship Lawyer and Accredited Specialist, Jodylee Bartal, said "The courts have pared back their approach to the doctrine since the Whiteley era and it is now much harder to establish 'special skills' to a sufficient degree as to attract the operation of the doctrine".
"Valuing contributions is not an accounting exercise" says Bartal. "Parties take on differing and complementary roles in a marriage, and this makes valuing their contributions a complex exercise."
Bartal said she was not surprised the decision had been overturned, commenting that "If the husband's shares had not performed well in this case, and the superannuation fund had lost a substantial amount of money, the Court would have been unlikely to award the wife a larger share (and effectively penalise the husband for the loss). The husband had taken a calculated risk with these shares which in this instance, proved to be successful."