Parties to a separation often find themselves before the Family Law Courts zealously advocating for a greater share of the proverbial pie in property matters.
Traditionally, an ‘entrepreneurial’ party was anxious to show that he or she possessed a special skill or talent, without which it would have been impossible for the parties to accumulate such significant matrimonial assets. In the past the Courts have rewarded the ‘skilled’ party by placing extra weight on the contribution of that party to the acquisition, conservation or improvement of the assets.
The justification was simple: the individual’s right to beneficial ownership of the fruits of his special skill took precedence over the pooling aspect of marriage.
An unfortunate bi-product of the doctrine of special skills was its failure to equally prioritise non-financial contributions. This protected the entitlements of the ‘skilled’ party whilst the contributions of home makers and primary care-givers were not assessed on an equal basis.
At the turn of the 21st century the doctrine of special skills was placed squarely within the judicial spotlight; its shortfalls and inadequacies illuminated by the changing socio-economic characteristics of modern society. Slowly but surely case law developed to promote equality in the assessment of contributions towards to the acquisition, conservation and improvement of assets. The Courts became increasingly tentative about using their judicial discretion to determine whether the quality of a party’s contribution was ‘special’ or ‘outstanding’.
How can one truly distinguish between exceptional entrepreneurialism and sheer luck?
Today, the popularity of the special skills doctrine has unmistakably waned, despite the attempts of the ‘skilled’ party to dust off the antiquated doctrine in a desperate attempt to maximise their entitlements to the asset pool.
How will the contributions be assessed?
The current stance on the special skills doctrine was most succinctly put by Judge O’Ryan in D & D :
“the notion of special contribution has all been a terrible mistake…what I have to do is identify and assess the contributions made by each of the parties without any presumption of entitlement.”
The law requires an assessment of contributions, whether financial, non financial, direct or indirect, based on all of the circumstances of the case. To surrender the legal analysis to subjective notions of special skills would be to obscure the application of the legislation (Murphy J in Smith & Fields ).
The Court has an “extraordinarily wide” discretion when assessing the contributions of the parties, and the doctrine of special skills operated to place an unacceptable fetter on that discretion. The increasingly defunct doctrine presupposed that the party possessing the ‘special skill’ was entitled to a greater portion of the respective asset without consideration of the overall circumstances of the parties’ relationship and other contributions. It was a presumption of entitlement that ‘jumped the gun’ and perpetuated inequality.
The current legal position was again confirmed in the full Family Court decision of Kane & Kane  FamCAFC 205.