On occasion, the Family Court of Australia has recognised the concept of "special skills" in assessing the contributions made by one party of a relationship. This issue has hit the media recently in relation to a case known as Kane & Kane where the husband lost $1 million on appeal after the Full Court of the Family Court rejected a previous decision indicating that the husband had made greater contributions to the asset pool due to his "special skills".
In the case of Kane & Kane, the husband invested approximately $540,000 in shares, against the wife's advices, which turned around a profit of over $1.3 million. At first instance, the Court accepted that the asset pool would not be as large were it not for the husband's special skill in deciding upon this investment.
The Full Court rejected this, indicating that the growth in the value of these shares was not due to the husband's ‘special skill’ but due to factors outside of his control, including market forces and the growth in value of the company.
The Court also considered the notion of “special skills” and how it has been dealt with in previous cases. Notably the doctrine of "special contributions" has been cautioned against, with one Judge indicating its use should be reconsidered in circumstances where it is impossible for a Judge to determine questions such as whether that person was good at their job or just lucky, was a good home maker and entertainer or just had a positive personality and so on. It was also cautioned that “special skills” do not necessarily result in a large sum of money and may unfairly discount the role of homemaker and parent.
The Court noted that nowhere in the legislation is there reference to words like “special” or “extraordinary” skills or contributions and that a notion of special contributions predisposes matters to an outcome that may not otherwise be available under established law.
The Court found that it was open to the Trial Judge to find that the husband's contributions were higher than the wife’s due to his investment decisions but that his investment decision should not be considered a "special skill" that warrants a significantly higher portion of the property pool to be distributed to the husband.
It seems that rather than refer to “special skills”, such cases should rather be assessed, like all other property cases, upon the level of contributions made by each party to a relationship.
If you are separating and believe that the asset pool of you and your partner is significantly higher due to your skills, or your partner is making such claim, we invite you to contact one of our Family Law experts.