Family Court departs from “Special Contribution” Doctrine in favour of husband

Case of Kane & Kane [2013] FamCAFC 205

The husband had paid around $540,000 for shares, and by the time of the divorce they were worth $1,850,000. The overall value of the superannuation fund was $3,400,000.

The trial judge awarded the husband two thirds of the fund on the basis that his “special skills” in pursuing the investments lead to a growth in the value of the fund.

On appeal, this approach was rejected with the Family Court noting that “disproportionate weight” was given to these special skills. Further the wife’s non-financial contributions as homemaker were not sufficiently taken into account.

The Family Court’s Deputy Chief Justice, John Faulks, noted that: “It is difficult to correlate effort or skill (even if special) with result. … Frequently the financial result of a contribution (whether by physical or intellectual labour or imagination foresight and perspicacity) will be influenced by external factors beyond the control of the party contributing.”

The notion of “special contributions” would have led to an inappropriate outcome weighted too favourably for the husband, and could not be accepted.

Commentary to date on the case indicates that it puts to an end the so-called “special contributions” doctrine whereby successful businessmen would usually walk away with 60-75 per cent of assets, particularly in the “big money” cases.

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