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Contributions No Longer Special

The recent decision of the Full Court of the Family Court of Australia in Hoffman & Hoffman [2014] FamCAFC 92 has finally marked the end of the concept or principle of special contributions.

The idea that one spouse has made “special” contributions to the accumulation of the parties’ wealth and is therefore entitled to a greater share in a property settlement has existed for at least twenty years since the decision in Ferarro & Ferarro [1992] FamCA 64.

However there has been doubt cast on whether such a principle exists. In the 2005 case of D & D [2005] FamCA 1462, Ryan J said that “…the notion of special contribution has all been a terrible mistake …”. The Full Court in Hoffman endorsed this statement and said

The task is to make findings as to the nature, form, characteristics and duration of each and all of the contributions made by each of the parties referenced to s 79(4), without adjectival qualification.

The Full Court assessed whether there was a binding legal principle relating to special contributions and quickly dismissed such an idea. It then considered whether a legitimate guideline had been established and found that none of the cases “reveals any principle enunciated with the clarity required to underpin a ‘legitimate guideline’ in respect of ‘special contributions’”.

In emphasising the importance of the wide discretion held by the Court, it was highlighted that contributions are not presumed to be equal, but that section 79 of the Family Law Act is written in gender neutral language and any categorisation such as special contributions is likely to “to discriminate against a spouse on the basis of roles which have been agreed”.

Thus it is now clear that all contributions are to be considered in the context of the marriage as a whole and not categorised in any particular manner.

By Nicholes Family Lawyers


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