Taking a Stance on Matrimonialisation: UK Supreme Court to consider the reformulated test on pre-marital wealth in Standish v Standish

Family Law

The law on matrimonialisation of assets has come into greater focus with the case of Standish v Standish. The English Court of Appeal in this case handed down a reformulated approach to the assessment exercise regarding the concept, and the UK Supreme Court is set to hear the final appeal this month, to answer the sweeping question of: 

“When does non-matrimonial property become matrimonial property in the context of financial remedy proceedings, and how should the sharing principle be applied to such property? ”1  

At a glance: Standish v Standish [2024] EWCA Civ 567, [2024] 4 WLR 60  Coram: Moylan, King and Phillips LJJ   The parties were married in 2005. The Husband had substantial pre-marital wealth at the time of marriage. The marriage came to end in 2020.   During the later stage of the marriage, in 2017, valuable assets accumulated from the Husband’s pre-marital wealth were transferred to the Wife for tax reasons. Those assets were held to be matrimonialised at the first instance and available for sharing, albeit on a basis which deviated from equal division, with the Husband receiving the larger share.  The arguments, in a nutshell:  The Wife argued that the assets transferred to her in 2017 were non-matrimonial and should be treated as her separate property, emphasising respect for parties’ autonomy as to how they had chosen to hold their assets during the marriage.   The Husband argued that the assets transferred to the Wife in 2017 were non-matrimonial property and should be treated as his separate property, as they were earned from his pre-marital endeavour.  The trial judge held that the Transferred Assets had been matrimonialised by the transfer to the Wife. The Court of appeal held that such assets had not been matrimonialised, and was non-matrimonial property of the Husband.

Standish v Standish is a case exploring novel arguments on matrimonialisation that have gone all the way up to the UK Supreme Court. The case addresses interactions between the matrimonialisation concept with tax-planning asset management, spousal autonomy regarding ownership and nuptial agreements, and the sharing of marital endeavours. The resultant judgment at the Court of Appeal stage set out a three-step approach on assessment of whether an asset has been matrimonialised. The exercise involves assessing, from the outset: (a) whether the percentage of assets said to be non-marital is of sufficient significance to justify investigation; (b) the extent to which the asset has been mixed with matrimonial property; and (c) whether the asset has been used to acquire the former matrimonial home. This guidance has provided a structured approach instructive in high-net-worth divorce cases involving pre-marital wealth, and the debate on this approach will now be heard in the apex court.  

In coming to its decision, the English Court of Appeal carried out a comprehensive survey of the historical development of the law in the area, and made clarifications regarding the importance of source, title, and spousal decisions on how to own their assets during their marriage.  

Factual Background and Findings

The marriage lasted from 2005 to 2020. The Husband was a financial professional and brought substantial pre-marital wealth into the marriage before his retirement in 2007. Compared to the Husband’s pre-marital wealth scale, the Wife’s pre-marital assets were modest.  

Central to the case were two 2017 financial transactions which were part of a tax-planning exercise, that had been transferred to from the Husband to the Wife, being investment funds worth £80 million which had been transferred from the Husband’s sole name to the Wife’s name, and a business in which the Wife was given shares worth £8.6 million (the “Transferred Assets”). The parties did not sign any pre- or post-nuptial agreement, which the Wife later argued was a calculated decision that ought to be taken into account in the arguments against matrimonialisation.  Moor J at first instance held that inter alia the Transferred Assets had been matrimonialised and were thus subject to the sharing principle. Moor J went on to decided that an unequal division of the assets was justified, principally because, the Transferred Assets had only been matrimonialised towards the end of the marriage. Moor J awarded the Wife 40% (£45 million) and the Husband 60% (£87 million) of the matrimonial property. 

Appeal

On appeal, the Wife argued the Transferred Assets were her non-matrimonial property, on the basis that her legal title was the critical factor, and as an application also of the Radmacher principles of parties’ autonomy (respecting how parties’ chose to own their assets). The Husband contended that their pre-marital nature precluded matrimonialisation.  

Holdings of the Court: Reformulated three-step approach to matrimonialisation assessment 

The Court of Appeal rejected the suggested approach of legal title as the critical factor. Moylan J emphasised that “the source of an asset is the critical factor and not title” (emphasis added) [149] – the transfer of property into another party’s sole name does not necessarily change the characterisation.  

Moylan J cautioned that “the concept of matrimonialisation should be applied narrowly” [162] and only where fairness demands it, as it is a derogation from the principle that sharing did not apply to non-matrimonial property. Focus on legal or beneficial title would be discriminatory and would undermine the sharing principle [152]. 

He went on to set out a reformulation of the three clear scenarios in which assets that had started out as non-matrimonial assets (ie. assets of pre-marital wealth / non-matrimonial source) could be “matrimonialised” [162]-[166]: 

(1) Percentage/significance: Where the percentage of the parties’ assets (or an asset) which might be said to be non-matrimonial, was not sufficiently significant to be treated separately, in that it was not justified to carry out an evidential investigation and/or an other than equal division of the wealth.

In such scenario, the sharing principle applies in conventional form.

(2) Extent of mixing: Where non-matrimonial property had been mixed with matrimonial property, the court will examine the extent and manner of such mixing, and consider whether fairness requires or justifies the asset being included within the sharing principle. 

When the evidence does not establish a clear dividing line between matrimonial and non-matrimonial property, a nuanced approach is required. The underlying question is whether the asset or assets should have the same character as those assets built up by their joint endeavours during the marriage, with the consequence that they should be shared on divorce, and if so, at what percentages.  

Even if the answer is that fairness does require the asset to be included within the sharing principle, it does not mean that it must be shared equally. The non-matrimonial source remains a relevant consideration. It is open to the court to decide that the non- matrimonial source, in whole or in part, of an asset treated as matrimonial property, justifies an other than equal division.  

The court looks at what award / percentage makes fair allowance for the parties’ wealth in part comprising or reflecting the product of non-marital endeavour”. 

(3) The FMH exception: Where non-matrimonial property has been used in the purchase of the former matrimonial home, an asset which tended to be treated as matrimonial, regardless of its source.  

The former matrimonial home normally stands in a category of its own. The court will typically, though not always, conclude the former matrimonial home should be shared. 

In discussing the correct approach to matrimonialisation, the Court of Appeal also confined the Radmacher principle to the approach for dealing with nuptial agreements, and rejected the notion that it dealt more generally with the determination of financial remedy [127]. The Wife argued that of central importance was parties’ autonomy and their choice as to how to own their assets. In respect of this argument, the Court held that the decision to transfer assets to another spouse, being a decision on “how they chose to own their assets” during their marriage, was far removed from “an agreement intended to govern the financial consequences of the marriage coming to an end” [129].  

The Court of Appeal, applying the above principles, held in favour of the Husband. It was held that, contrary to the trial judge’s view, the importance and relevance of the non-matrimonial source of the Transferred Assets had not been diminished by their transfer to the sole ownership of the wife, and the Transferred Assets had not been matrimonialised. The Court of Appeal furthermore was of the view that a fair application of the sharing principle would have resulted in the wife receiving/retaining wealth of approximately £25 million, but that the matter had to be remitted back to first instance in order to assess whether or not such sum could meet her needs.  

Conclusion

This case has important bearings on determining the size of the matrimonial pot. It also highlights the importance of taking action at an early stage if there is an intention to ring-fence assets, both where (i) a party intends to ring-fence pre-marital wealth (in the Husband’s case) and (ii) where an intra-marriage transfer was intended to create ring-fenced property for the recipient (in the Wife’s case).   

It remains to be seen whether the Court of Appeal’s reformulation will be adopted by the Supreme Court, or whether a further reformulated test will come into play.  

For the time being, when advising clients on possible outcomes of financial division, practitioners ought to focus on evaluation of the source of assets, and evaluating the fairness and scale of reclassifying them as non-matrimonial assets. Title alone is far from determinative. Additionally, clients will need to be aware that under the current principles, even if assets are (i) held to be sufficiently significant to undergo the “matrimonialisation” determination and (ii) held to be matrimonialised, the court may still decide on unequal distribution depending on case-specific factors, such as the timing, source and manner of contributions. Practitioners should also stay abreast of this changing landscape: the final word from the Supreme Court is expected to have wide-reaching implications for allegations of pre-marital wealth. 

 

Isabel Tam

“Isabel is strong in analysis and research.” 
Legal 500 Asia-Pacific 2025: Administrative and Public Law – Leading Junior

Isabel is a Bar Scholar who graduated with a first-class LLB and with distinction in her LLM. She also has an MA in competition law with distinction in the examination component and was seconded to the Competition Commission.

Called to the Bar in 2013, Isabel practises in a wide range of areas, with an emphasis on family law, commercial/regulatory matters and public law.

Recent highlights of Isabel’s experience include: NH v TCAB [2024] 6 HKC 765 on the treatment of the principle of res judicata in administrative decision-making; NF v R [2023] 5 HKLRD 58, a breakthrough for same-sex parents, granting a declaration of “parentage at common law” to a same-sex couple; and AA v BB [2021] 2 HKLRD 1225, which has been hailed as a landmark victory for the LGBTQ community, granting rights to a separated same-sex couple who had co-parented children during their relationship.

Visit Isabel’s profile for more details.

This article was first published on 15 April 2025.

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.