RMB Articles

Special Skills Lose their Edge

Posted 29-02-2016
Written by admin 101
Category Family Law

There is a doctrine in Family Law that if one party of a marriage has a skill which leads to considerable growth in the wealth during the marriage then that party should receive credit upon the break-down by virtue of that skill.

A recent case has changed this and made Family Lawyers reconsider their position on this.

The court considered “special skill” in the case known as Kane and Kane, in which a couple held assets of $4.3 million, of which $3.4 million was held in a self-managed superannuation fund.

The parties had contributed financially identical amounts to the superannuation fund.

In the first instance, it was argued that Mr Kane had used his investment skill to build the couple's wealth against his wife's wishes. It was conceded that his investment knowledge had led to considerable growth in the value of the superannuation.

The trial judge upheld the doctrine that it was due to Mr Kane's "special skill" that the couple had the assets that they did. Mr Kane was awarded over 60% of the super fund which saw him receive over $1 million more than his wife. The remainder of the assets were divided equally.

On appeal to the Family Court of Australia, the decision of the trial judge was overturned, as Deputy Chief Justice Faulks found that it was unreasonable to give such a significant weight to Mr Kane's "skill".

His honour formed the view that: ''Frequently, the financial result of a contribution (whether by physical or intellectual labour or imagination, foresight and perspicacity) will be influenced by external factors beyond the control of the party contributing.''

Often in practical terms, the doctrine dictates that where the wife has been the homemaker and parent, and the husband worked and been deemed to have a "special skill" the court should consider this.

Surely one party staying at home and raising the children of the marriage is not of a lesser weight than the party who earns the income.

This case creates an argument that one contribution to a marriage should be given no greater weight than another.

There is likely to be further comment on this area of Family Law into the future as the Family Law Act 1975 is silent as to how much weight different contributions should be given.

If you, your family or friends wish to enquire about a similar circumstance, please email us on our "Ask Us a Question" feature or call (02) 4228 8288 to speak to one of our specialist family lawyers.