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Am I a genius? Deciding on what’s fair and what’s not in divorce proceedings

When considering the financial settlements between parties going through a divorce, the court must consider a number of factors set out in law. One of which is that of the “contributions” made by the parties throughout the marriage.

In big money cases where the wealth - as may often be the case - is accumulated by one party due to a particular skill or flair, it has been known for that party to rely on this point to argue that there ought to be a departure from equality in their favour.

This issue made the news recently when it was reported that the former Manchester United footballer Ryan Giggs is to argue in the family courts that he should be awarded the lion’s share of the £40million fortune shared with his wife because of his “special contribution” to their wealth as a result of his established playing and managerial career.

The "genius" clause

This precedent was set during a case in 2001 when the court of appeal ruled that a husband could keep the majority of his £12m bin liner fortune amassed with his wife because his “contribution, in terms of entrepreneurial flair, inventiveness and hard work, was truly exceptional”. This particular argument has been coined the “genius” clause by many who have tried to put forward the same argument in the courts since.

Fortunately for the other party, who may well have made contributions in a non-financial way (such as caring for their children), very few individuals arguing genius have been successful.  Since the infamous case in 2001 many wealthy spouses have relied on the genius argument but have failed, making it more difficult for the court to perhaps accept such an argument going forward.

Many will wonder whether it is fair to award someone a greater share just because of a particular skill-set or acumen as a result of which they have been able to generate substantial wealth over and above a non-financial contribution made by their other half. On the other hand, it could be argued that had it not been for the non-financial contributions made by the other party it may not have been possible to generate the very same wealth in dispute between the parties.

Fortunately for Mrs Giggs, and any other party facing the genius clause argument, the law in this country is mindful of contributions - financial or otherwise - made by both parties in a marriage and fairness is not undermined.

Nesheela Nazir is the Head of Family Department and is based in our Cotteridge office. 

If you have any queries or questions or need any advice regarding a financial settlement following a separation please contact Nesheela on 0121 685 1255 or email her on n.nazir@qsdavisons.com

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