The case of Work v Gray has been in the news this week, as the Court of Appeal dealt with Mr Work’s attempt to overturn a decision that his wife should get a half share of their fortune. We wrote about it in January here :

http://www.transparencyproject.org.uk/a-genius-from-another-planet/

This post will look at the recent appeal decision and what it says, AND the coverage of it in the press.

What is this case all about?

For those unfamiliar with the case, it involved a very wealthy couple who couldn’t agree how to split their massive pot of money. Mr Work had been the big earner whilst his wife said she had made equal but non-monetary contributions that meant she should have an equal share of their joint wealth. The court agreed with her. Mr Work was not happy and appealed. The appeal turned on whether or not Mr Work had made a “special” or “stellar” contribution or was a “genius” so that it justified a departure from the equal division his wife contended for. Now the Court of Appeal has upheld the original decision of Holman J : he got the law right, he correctly identified that the term “genius” was unhelpful, and that instead :

…it is sufficient for the court to determine whether the contribution is wholly exceptional. As referred to above, 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.

The Court of Appeal approved the summary of the law in Holman J’s judgment (deleting only one line marked below) :

(i) 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: per Bodey J in Lambert but quoted with obvious approbation by Lord Nicholls of Birkenhead in Miller at paragraph 68.

(ii) 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 (Lord Nicholls of Birkenhead in Miller at paragraph 68).

(iii) Only if there is such a disparity in their respective contributions to the welfare of the family that it would be inequitable to disregard it should this be taken into account in determining their shares (Baroness Hale of Richmond, in Miller at paragraph 146).

(iv) It is extremely important to avoid discrimination against the home-maker (the Court of Appeal in Charman at paragraphs 79 and 80).

(v)A special contribution requires a contribution by one unmatched by the other (the Court of Appeal in Charman at paragraph 79).

(vi) The amount of the 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, whether by genius in business or some other field (the Court of Appeal in Charman at paragraph 80). A windfall is not enough.

(vii) There is no identified threshold for such a claim to succeed (the Court of Appeal in Charman at paragraph 88).

Finally, they concluded that he’d applied the law correctly and that there was nothing in his approach to the case that was appealable.

What about the press coverage?

The Telegraph come in top of the naughty board with this particularly misleading headline :

The millionaire divorce case that’s just changed everything for stay-at-home mothers

The summary of the law above, as approved by the Court of Appeal is a distillation of the law as set out previously a decade ago (in two very important cases of Miller and Charman). It doesn’t change the law at all, at most it clarifies and reconfirms the existing position as it has always been understood – there is a thing called “special contribution” that very exceptionally may make a difference to the division of assets but in most cases it just won’t apply.

The article, itself, written by a solicitor Alexandra Hirst, is actually far better than the headline (she probably had no input in the headline, which was probably cooked up by a subbie). Our only small quibble is this. Hirst says :

Thanks to yesterday’s verdict, it is now settled law that there should be no discrimination between the breadwinner and the homemaker. Staying at home – cooking, cleaning and reading to the children – is as important as working 12 hours a day on the trading floor and earning £1m a year.

We don’t disagree with the underlying proposition that there should be no discrimination between breadwinner and homemaker – but that has actually been the law for some time – we think this decision simply reinforces that fact.

More importantly than what has or hasn’t changed for big money cases is the fact that this case, along with most of the financial cases that you ever read in the press, is about a couple with a vast amount of money to argue over (so vast in fact that they each had not one but two QCs). Arguments over special contributions are only ever going to even be run by a very small top slice of couples, and an even smaller number will be successful. And whilst the principle of non-discrimination applies across the board cases where couples have more modest means (the vast majority) will generally have to be decided on the basis of needs – how can the court achieve a decent home for both parties (if it can do so at all), how can it ensure that the parties’ and childrens’ practical needs are met? In these cases equal division may be an aspiration but it will very often not be achievable. And in truth, it will often be women who retain (at least for the medium term) the bulk of the assets as they remain the carers for the children who must take priority in housing terms.

Other reports include :

The Daily Mail : Katie Hopkins wades in (about the Ryan Giggs case, but looking at the special contributions argument) : Apparently Ryan Giggs thinks he shouldn’t give his wife half his money because he’s a ‘special’ genius. At what? Cheating on her? This is as close Katie goes to an explanation of the legal issues in play :

Our friend, Randy Work, lost his case. The three judges threw out his claim saying genius claim should be reserved for Leonardo Da Vinci, Mozart and Einstein.

So the question is: does Giggsy see himself on a par with Einstein? In Simon Cowell terms, does he really have the X-factor?

The Daily Mail again : You’re no Einstein! Millionaire tycoon loses legal fight to stop wife who cheated on him walking away with half of his £150million fortune – despite claiming his special ‘genius’ made all their money

This article is immediately followed on the same page about Ryan Giggs, again drawing the parallel between the two cases, as both husbands rely on the same legal argument to save them from equal division.

We note that both the Mail articles emphasise marital infidelity (in the Giggs case by the would be “genius”, in the Work case by the wife). In neither example is the infidelity likely to be remotely legally relevant. Only very extreme bad behaviour is taken into account when making decisions about finances.

The Telegraph again : Thank God we aren’t all geniuses – it would be a socially bankrupt nightmare – this is more about the desirability of aspiring to the status of genius, which the author equates with narcissistic personality disorder.

The Times : ‘Genius’ in £180m divorce loses fight against equal split and The Brief (both unremarkable)