A Footballers’ Wives Tale – ‘Genius’ and the special/stellar contribution argument

Ryan Giggs is just one of the latest high profile footballers presently embroiled in divorce proceedings following the breakdown of his 10-year marriage to wife Stacey. As has been reported in the press, Giggs is seeking to argue in the High Court that his “special contribution” to the family’s reported £40m+ fortune justifies him leaving the marriage with a larger than one-half share of the assets.

The law surrounding “special contribution” arguments is complex and in recent years the courts have largely not been either receptive of or sympathetic to these arguments.

So, when can it be argued that a party has made an un-matched contribution (and so should receive a larger proportion of the family wealth) and when is an un-matched contribution “special” or “stellar”?

The notion of a “stellar contribution” was first developed in the case of Cowan –v- Cowan [2001] EWCA Civ 679. This case involved assets of circa £12m which were largely amassed by the husband’s ‘genius’ (introduction of bin-liners to the UK). The court recognised that ‘fairness certainly permits and in some cases requires recognition of the product of the genius with which only one of the spouses may be endowed.’

The Court of Appeal in Lambert –v- Lambert [2002] EWCA Civ 1685 were quick to limit “special contribution” or “stellar contribution” arguments to truly exceptional cases. The Court stated that the contribution must be ‘of a wholly exceptional nature, such that it would be very obviously inconsistent with the objective of achieving fairness (ie it would create an unfair outcome) for them to be ignored’.

In Gray –v- Work [2015] All ER (D) 302 (Mar) there were assets, at trial, of approx. £144m. The husband in his career had amassed a fortune of between $300m and $450m in 8 years. The Court grappled with earlier references to the word “genius” and re-confirmed that for a claim of “special contribution” to succeed, ‘some “exceptional and individual quality which deserves special treatment’’’ is required. The Judge went further and said ‘the fact that judges have used the word “genius” in this context does tend to underline how exceptional, individual and special the quality has to be.’ The judge also confirmed that a special contribution would need to be more than a windfall and that ‘being in the right place at the right time, or benefitting from a period of boom is not enough.’ The husband, on this occasion, was found not to have made an unmatched special contribution and his wife was awarded £72m.

The Judge even stated, perhaps predicting a future Ryan Giggs, that ‘It may one day fall for consideration whether a very highly paid footballer, who is very good at his job but may be no more skilful that past greats, such as Stanley Matthews or Bobby Charlton, makes a special contribution or is merely the lucky beneficiary of the colossal payments now made possible by the sale of television rights.’ [sic]

One case in which the ‘genius’ argument succeeded is Cooper-Hohn v Hohn [2014] EWHC 4122 (Fam) in which the husband had, throughout the marriage, generated wealth of US$6billion. The judge in finding that the husband had made a “special contribution” and labelling him a ‘financial genius in his particular field’ asked herself the following questions (to which her answer to each of these questions was “yes”):

“1. Can it properly be said that he is the generating force behind the fortune rather than the product itself?

2.  Does the scale of the wealth depend upon his innovative vision as well as on his ability to develop those visions?

3.  Has he generated truly vast wealth such that his business success can properly be viewed as exceptional?

4.  Does he have a special skill and effort which is special to him and which survives as a material consideration despite the partnership or pooling aspect of the marriage?

5.  Would it, in all the circumstances, be inequitable for me to disregard that contribution?”

Giggs, his obvious footballing talents aside, is likely to face a (albeit not impossible) struggle to convince the court of his ‘genius’ – thereby allowing him to walk-away with a greater share of the family’s wealth.