Ashley Murray
We thank retired family law barrister, Ashley Murray, for providing us with his review of the recent decision made in (Standish v Standish [2025] UKSC 26) which he wrote on the 2nd July 2025.
In a unanimous decision of the Five Justices: For the purposes of the Court’s s.25 (MCA 1973) ‘statutory exercise in financial remedy applications upon divorce’:-
Legal Principles Applicable to the Approach to Non-Matrimonial and Matrimonial Property and the Sharing Principle:
First Principle
- The distinction between non-matrimonial and matrimonial property turns on the source of the asset in question (para 47);
- Non-matrimonial property is typically pre-marital property brought into the marriage by one of the parties or property acquired by one of the parties by external inheritance or gift. (para 47);
- ‘Matrimonial property’ is property that comprises the fruits of the marriage partnership or reflects the marriage partnership or is the product of the parties’ common endeavour. (para 47);
- Who has title to property is not determinative of what will be seen as ‘matrimonial property’ for division between the parties (para 47);
Second Principle
- The time has come to make clear that in non-matrimonial property should not be subject to the sharing principle (though non-matrimonial property can be subject to the principles of needs and compensation). The Charman (2007) view that the sharing principle applies to all the parties’ property, including that which is non matrimonial is no longer to be followed (para 48);
- In non-needs and non-compensation cases, the sharing principle should be applied to matrimonial property only (para 49).
Third Principle
- The sharing of the matrimonial property should normally as a matter of principled starting position be on an equal basis, subject to justified departures, much of which may fade away once non-matrimonial property is excluded (para 50);
Fourth Principle
- ‘Matrimonialisation’ is a useful shorthand term to describe the process or mechanism by which non-matrimonial property may become matrimonial property (para 51);
- To determine if the transformation has occurred the leading examination of the process (as now approved – see para 51) is that of Wilson LJ in K v L (2011) EWCA Civ 550:-
‘[18]…I believe that the true proposition is that the importance of the source of the
assets may diminish over time. Three situations come to mind:
(a) Over time matrimonial property of such value has been acquired as to diminish
the significance of the initial contribution by one spouse of non-matrimonial
property.
(b) Over time the non-matrimonial property initially contributed has been mixed
with matrimonial property in circumstances in which the contributor may be said to
have accepted that it should be treated as matrimonial property or in which, at any
rate, the task of identifying its current value is too difficult.
(c) The contributor of non-matrimonial property has chosen to invest it in the
purchase of a matrimonial home which, although vested in his or her sole name, has—
as in most cases one would expect—come over time to be treated by the parties as a
central item of matrimonial property.’
- Contrasting White (2000) from the facts of Standish (where H had transferred £77.8m in value of share certificates into W’s name for the sole purposes of securing a tax mitigation and to benefit their children in an eventual trust set up) – in White the
situations of (a) and (b) above had been present – whereas, in Standish the share certificates value (at hearing c £80m) remained ringfenced and untouched in the wife’s name following the transfer pending action to set up a trust without any
suggestion that there had been any diminution in the importance of the source of the parties’ entire wealth holdings (para 51); - Contrary to the view of Moylan LJ in the Court of Appeal, the (a) to (c) categories in K v L above are not to be seen as exclusive and, therefore, the concept of ‘matrimonialisation’ is not to be treated as either a narrow or wide concept;
- Instead, leaving aside those cases where matrimonial property has been acquired
from contributions from each party, a court is to:
‘…consider how the parties have been dealing with the asset and whether this shows that,
over time, they have been treating the asset as shared between them. That is,
‘matrimonialisation’ rests on the parties, over time, treating the asset as shared’.
It is important to consider the parties’ dealing with the asset and if they have treated
it as shared and the emphasis in each of K v L’s (a) to (c) situations above is on ‘over
time’, which means the period of time must be sufficiently long for the parties’
treatment of the asset as shared to be regarded as settled (para 52);
It is important to consider the parties’ dealing with the asset and if they have treated it as shared and the emphasis in each of K v L’s (a) to (c) situations above is on ‘over time’, which means the period of time must be sufficiently long for the parties’
treatment of the asset as shared to be regarded as settled (para 52);
- An example of a party demonstrating an intention to use, say, an inheritance for the benefit of the family may be where it has been actually used and enjoyed as such, albeit its source was outside the marriage (para 53);
- The application of the sharing principle must be tied back to seeking a fair outcome – hence it is the parties’ treatment of what was initially non-matrimonial property, over time, as shared between them, that is central in deciding the fairness of that
property being viewed as ‘matrimonialised’. The K v L situations of (b) and (c) above each illustrate that (para 54). - The K v L situation of (a) above, reflects the position where on a pragmatic assessment the matrimonial property before the court is so much greater than the non-matrimonial that ‘it is not worth the candle’ and, therefore, it would be unfair to the parties to try to work out the non-matrimonial percentage as opposed to simply treating it all as matrimonial. Accordingly, Moylan LJ’s reformulation of K v L’s situation at (a) above is approved:-
“[163]…The percentage of the parties’ assets (or of an asset), which were or which might
be said to comprise or reflect the product of non-marital endeavour, is not sufficiently
significant to justify an evidential investigation and/or an other than equal division of the
wealth.”(Para 55);
Fifth Principle
- Regarding ‘matrimonialisation’ on the facts of Standish, in relation to a scheme designed to save tax, where one spouse transfers an asset to the other spouse, the parties’ dealings with the asset, irrespective of the time period involved, do not
normally show that the asset is being treated as shared between them as opposed to it being shown to be simply to save tax (such tax planning schemes are commonplace between spouses where no tax on capital transfers arise) and without some further compelling evidence, such do not establish that the parties are treating the capital asset as shared between them. (para 61); - W had contended on appeal that whilst 75% of the share certificates transferred to her had been initially non-matrimonial in source, having been introduced by H premaritally, the same had been ‘matrimonialised’ by that transfer to her being for the
benefit of the family. However, the Supreme Court considered unlike say a home or a holiday-home or a family car where ‘family benefit’ would embrace both the other spouse and children alike – here as there was no tax anyway involved in capital
transfers between spouses and no intention to benefit other than the children – then there had been no ‘matrimonialisation’ of this (75%) proportion of the transfer to W.(para 62-63).
W’s Appeal Dismissed.