Work v Gray (Rev 1)

Judgment Approved

Sir Terence Etherton MR, King LJ and Moylan LJ

Introduction

In this judgment, we propose to call the parties the husband and the wife, reflecting their status in the proceedings.

The husband appeals from the order of Holman J of 10 th March 2015, which recites his decision that the husband and the wife were entitled to an equal share of the marital wealth. In doing so, the judge rejected the husband’s case that he had made a special financial contribution which justified an unequal division of that wealth in his favour.

This appeal provides an opportunity for this court to review the issue of special contribution and its proper scope, if any, when the court is determining a financial claim under the Matrimonial Causes Act 1973 (“the MCA 1973”).

The issues raised by this appeal can be summarised as follows:

What is the proper approach to the determination of whether a party has made a special contribution which, in the application of the sharing principle, justifies an unequal division of marital wealth;

Does the concept of special contribution remain valid or should it be discarded as being discriminatory;

Did Holman J apply the proper approach;

If his decision wrong, what division of the matrimonial property should have been made.

Issue (ii) was not raised below but was the subject of the wife’s Respondent’s Notice. We gave permission to the wife to make submissions on the issue at the hearing of the appeal.

The husband seeks an unequal division of the matrimonial property in his favour, namely 61%. The wife submits that Holman J’s decision should be upheld.

We are grateful for the submissions made by all counsel in this case. Mr Cusworth QC (who did not appear below) questioned whether the expression “special contribution” should be abandoned in favour of some other formulation. In K v L (Non-Matrimonial Property: Special Contribution) [2011] 2 FLR 980 Wilson LJ (as he then was) described the phrase as a “term of art in the law of ancillary relief” (para 20). We do not consider that there have been any significant developments since then which would warrant a change in this descriptive phrase.

The structure of this judgment is as follows:

Background;

The judgment of Holman J;

Legal context;

The parties’ submissions;

Special Contribution – its development;

Determination.

Background

At the date of the judgment the husband was aged nearly 48 and the wife nearly 46. They were both born and brought up in the USA. They