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Breadwinner v homemaker: what happens on divorce?

In 2017 in the case of XW v XH the family court allowed a husband to retain the bulk of the family assets due to his ‘special contribution’.

In 2017 in the case of XW v XH the family court allowed a husband to retain the bulk of the family assets due to his ‘special contribution’. The matter returned to the Court of Appeal in 2019, when that decision was overturned – why?

Starting point

On a divorce, each party is entitled to a fair and reasonable financial settlement. In order to assess that, the court has reference to both statute and previous cases, and section 25 Matrimonial Causes Act 1973, giving a list of issues to consider, specifically requires consideration of whether one party’s ‘contribution’ should influence a financial settlement.

In 2000 the then House of Lords gave a landmark judgment in White v White. Lord Nicholls stated “there should be no bias in favour of the money-earner and against the home-maker and child-carer”.

Special contribution

However, since then a number of divorcing husbands (note: not wives) have sought to argue that their contribution was such that it exceeded the norm, and was of such magnetic, or ‘stellar’ quality, to justify an award of more of the family resources to them.

Another 2017 case, Work v Gray, gave guidance about what might amount to an exceptional or special contribution from one party. That guidance was summarised by the court in XW v XH as follows (emphasis is our own):

“a. The characteristics or circumstances which would result in a departure from equality have to be of a wholly exceptional nature such that it would very obviously be inconsistent with the objective of achieving fairness for them to be ignored;

  1. Exceptional earnings are to be regarded as a factor pointing away from equality of division when, but only when, it would be inequitable to proceed otherwise;
  2. Only if there is such disparity in the respective contributions to the welfare of the family that it will be inequitable to disregard it should this be taken into account in determining their shares;
  3. It is extremely important to avoid discrimination against the home-maker;
  4. The amount of wealth alone may be so extraordinary as to make it easy for the party who generated it to claim an exceptional and individual quality which deserves special treatment; often however he or she will need independently to establish such a quality; this requires the court to look both at the nature of the contribution and to determine whether it derives from an exceptional and individual quality;
  5. There is no identified threshold for such a claim to succeed”.

As such, it is a very special and exceptional contribution that could advantage the breadwinner or richer party.

A win for equality

XW and XH went to the Court of Appeal, and judgment has now been given, reversing the decision in the husband’s favour, and overturning what the wife argued was an unfair division of marital assets. It is said to be a critical win for gender equality in divorce. 

Lord Justice Moylan said: “In this case, the wife’s enormous contribution to the welfare and happiness of the family, as the homemaker and principal carer of AB [a disabled child], both during and after the marriage, has been and will be incalculable.”

The case is pivotal in preventing those undertaking domestic or homemaker roles in a marriage from losing out on what they are entitled to on divorce. Financial clout is not prioritised, and the contribution of a homemaker is equally as valuable, often allowing the breadwinner to succeed.

There will, inevitably, be future cases where the ‘special contribution’ argument continues to be made, but at least, for now, this case reiterates that the differing roles undertaken by parties to a marriage are of equal importance.

If you have any questions regarding this update, please contact Fiona Turner, Partner on 0161 214 0557 or fiona.turner@weightmans.com.

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