Regardless of whether you are a Man Utd fan or not, Giggs has undoubtedly generated substantial wealth during his football career. It has been widely reported that he and his wife, Stacey, are divorcing. Apparently he will argue that he should have more than an equal share of the assets because of his skills in creating the wealth.
So, does the law recognise genius or "special contribution" by the bread-winner when dividing a couple's assets on divorce?
The simple answer is yes. The English courts have given a larger share of assets to the high-achieving husband in recent years, and such decisions are likely to influence the Manx courts.
Genius is, of course, not gender specific. Whilst it has, in fact, been the husband in these cases, the wife could equally be the one who has made the special contribution to the family wealth.
There have, however, only been 3 reported cases since 2002 in which one spouse has received more than half the assets as a result of special contribution.
In 2005, Sir Martin Sorrell was awarded 60% of the parties' £100 million as a result of his special contribution in creating that fortune. The judge said that he displayed, "extraordinary acumen and drive," in developing WPP into an advertising giant and was, "regarded within his field and the wider business community as one of the most exceptional and most talented businessmen."
Next came Mr and Mrs Charman in 2007 with £131 million. Instead of an equal share, Mr Charman was awarded 63.5% of the total assets, mainly due to the special contribution he made in generating the assets. Mr Charman's endeavours were found to be exceptional. He started his career effectively unqualified as a junior clerk at Lloyds of London. In the mid-1990s he helped to save the business through his, "drive, ingenuity and courage." Eventually, he set up his own very successful global insurance business.
In 2014 Sir Christopher Hohn was awarded a 64% share of a total of £869 million, again as a result of his involvement in generating such a vast fortune. His wife, Jamie Cooper, received only 36%, despite her particularly active role as the primary carer of their 4 children and as President and CEO of one of the parties' charitable foundations.
A note of caution, however, to those who consider their contribution to be 'special': the courts will not necessarily agree. Indeed, in most cases the courts do not agree that either the husband or wife is a genius and the bar is set very high. The courts are reluctant to find that one spouse has made a greater contribution. It is a fundamental principle that there should not be discrimination against the home-maker.
Earlier this year, the High Court Judge, Mostyn J, said that cases where special contribution enables the money-earner to receive more than 50% of the assets should be, "as rare as a white leopard." Google tells us that the White, or Snow, Leopard is on the IUCN Red List of Threatened Species, with 2016 estimates putting their global population at between 4,080 and 8,700. In short, pretty rare indeed!
Consider, for example, the 2016 divorce of the ASOS founder, Mr Robertson. He increased the couple's wealth from £1.2 million at the start of the relationship to £219 million at the time of divorce. The court acknowledged that ASOS was a very successful company. It had been the best performing share in the history of the London Stock Exchange AIM. He had been awarded an OBE and many other awards. It is reported that the Telegraph called him, "one of the greatest entrepreneurs of the 20th century." Yet, the court said, he, "was not, with respect to him, a genius," and his contribution did not justify more than an equal share of the assets.
In the case of the Laura Ashley boss, Chai v Peng in 2017, there was found to be no special contribution by the husband. The marriage had lasted 42 years with 5 children, and the wife received £64.5 million out of a total of £161million. She was given less than 50% because she was to receive more of the liquid assets, but this had nothing to do with the husband's contribution as the money-earner.
In the X v X case of 2016, which was anonymised so we do not know who the parties were, the judge said that the husband's achievement with his company was, "huge," and that, "anyone would pay tribute to his business acumen, vision, drive, leadership, energy, problem solving, tenacity, guts, dynamism and downright hard work." Despite this, the judge decided that the husband did not have the, "spark of innovative genius," required to win the special contribution argument.
Incidentally, the court will only consider whether the money-earner has made a special contribution or had a spark of genius if there has been enough money to meet the reasonable needs of both parties and any children. What, one might ask, constitutes reasonable need? In X v X, the court spent some time analysing the share proposed for the wife and decided that her needs would be, "reasonably met," with the sum of £13.854 million.
So, will Giggs pass the 'special contribution' test? This remains to be seen. For those going through a separation, this is certainly an issue to consider. It must, however, be considered alongside many other factors and is not straightforward. Establishing genius, or 'special contribution' is, possible, but only in cases, "as rare as a white leopard", and so this is not easy.
Genius is not simply a matter of amassing colossal wealth. Indeed, colossal wealth is not necessarily a requirement. In the 2009 case of ST v TK, the judge commented that there is no rule to prevent a spouse with a fortune of less than £20 million from successfully claiming special contribution. Whatever the size of the kitty, something more than wealth creation is required: a "spark of innovative genius," (Bodey J, X v X) and an, "exceptional quality which deserves special treatment," (Holman J, Gray v Work). Potentially, this could mean creating or inventing something completely new, whether tangible or a process. It could, possibly, mean just doing something really well...like kicking a football with your left boot in the manner of Mr. Giggs.
It is because such contributions are so unique that they are difficult to define concisely. Whether a contribution is sufficiently special to justify one spouse being awarded more than an equal share in the matrimonial pot will depend on all the circumstances of a particular case. The English court decisions on this point can offer guidance. If faced with the issue of genius in a divorce case, it is likely that the Manx courts will draw similar conclusions to those of England and Wales.
Legal advice should be obtained, whether you are the money earner with the 'spark of genius' or the spouse who has provided on-going support and needs to defend against such a claim. Pre-nups, or even post-nups (an agreement entered into when you are already married), should be considered to reduce the possibility of a lengthy and expensive legal fight over this issue.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.