Standish v Standish [2024]: Should pre-marital fortunes be shared

Case Background

In Standish v Standish [2024] EWCA Civ 567, the husband had significant wealth prior to the marriage, although he generated further wealth during it. He was originally from the UK but moved to Australia where he met his wife, an Australian national.

The husband retired in 2007, and the parties moved to the UK in 2010. Prior to becoming deemed domiciled in England in 2017, the husband was advised to transfer assets to the wife, on the basis that she would remain “non-dom” for tax purposes, which, it was said, would protect against inheritance tax. The intention was that the wife would subsequently place the assets in discretionary trusts in Jersey.

The husband transferred approximately £77m worth of assets to the wife on this basis (worth £80m by the time of the trial). The overall assets totalled £132m.

The wife did not transfer the assets into trust but instead commenced divorce proceedings in April 2020, at which point the husband’s assets remained held in her name. On the parties’ divorce, the wife’s case was that the marriage was a partnership of equals. There had been no pre-nuptial agreement prior to the marriage, to protect the husband’s pre-acquired wealth, or a post-nuptial agreement at the time of the 2017 transfers, which she argued demonstrated an intention to share all the assets transferred.

Given that the husband had transferred the assets to her, with the intention of ownership passing to her (otherwise, he would have remained entitled to them for tax purposes), the wife’s position was that the sums transferred to her became her separate property.

The husband asserted that the financial claims should be determined with reference to the wife’s needs and the remainder returned to him.

The Court Decisions So Far

High Court decision

Mr Justice Moor at the first hearing found that the transfer of the non-marital assets by the husband to the wife had the effect of ‘matrimonialising’ them, therefore making them available for sharing.

However, he determined that their pre-marital source was the magnetic feature of the case, and as a result they should be shared unequally. The overall assets totalled £132m of which Mr Justice Moor ordered the wife should receive £45m. This represented a division of the marital property of 60/40 in the husband’s favour (some of the property having been found to be non-marital).

Court of Appeal decision

The wife appealed and the husband cross appealed, with the husband being successful in his appeal. The Court of Appeal determined that the transfer to the wife did not ‘matrimonialise’ the assets and, as a result, reduced her sharing entitlement by 45% to £25m being 50% of the assets which the Court of Appeal found to be matrimonial.

The Court of Appeal further considered the concept of “matrimonialisation” namely whether an asset that had been brought into the marriage by one party and would normally be treated as non-matrimonial could evolve into a matrimonial asset.

The Court took the view that matrimonialisation remains a relevant concept, but should be narrowly construed, so that it is not used by parties in a way which would undermine the clarity of the sharing principle. The Court considered three ways in which assets could be matrimonialised:

1. 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.
2. Where non-matrimonial property had been mixed with matrimonial property meaning that, in fairness, it should be included within the sharing principle.
3. 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.

Where an asset fell into category (a), the sharing principle would apply. Where an asset fell into category (c), the court will typically conclude that the former matrimonial home should be shared equally although this is not inevitable. Where, however, an asset fell into category (b), the court will have to consider whether fairness requires or justifies the asset being included within the sharing principle. If it does, that does not mean that it must be shared equally.

The court reiterated that fairness is the paramount consideration, and this does not always equate to equal division. Even where assets have become matrimonial, the court may still adjust the division based on the source of the wealth and the contributions of each party.

The Court considered that, on a sharing basis, the wife should receive a total of £25m (as opposed to the figure of £45m Mr Justice Moor at the first hearing had considered her to be entitled to). However, it was also noted that the High Court had not carried out a needs assessment and so it would also need to be established that the £25m was in fact sufficient to meet the wife’s needs.

Supreme Court decision

In October 2024, the wife was granted leave to appeal by the Supreme Court, with the case progressing to a hearing on 30 April and 1 May 2025. The Supreme Court as a result will consider the circumstances in which an individual’s non-matrimonial property can become matrimonial property in the context of divorce proceedings, and how the principle of sharing matrimonial property should be applied to such property.

The Standish case will also address how the movement of money that is specifically undertaken for tax/wealth planning is treated on divorce, and might further provide clarity for couples who may be considering how to structure their finances and move money between one another and the wider family.

The hearing continues in the Supreme Court and no judgement has been released yet.

The legal development of the Sharing Principle over the years

During divorce proceedings, issues arise as to whether certain assets constitute ‘matrimonial’ or ‘non-matrimonial’ property. Non-matrimonial property are assets brought to the marriage by either spouse or inherited by them. The principle of non-matrimonial property derives from the case of White v White [2000] UKHL 54, which in addition to establishing the distinction between matrimonial and non-matrimonial property, also laid the groundwork to the principle of mingling, derived from the case of N v F [2011] Fam Law 686.

Non-matrimonial property is generally only shared in the event that its sharing is required to meet the other party’s reasonable needs. It would generally fall outside the scope of equal sharing and should therefore remain with the party who acquired or brought the specific item of property into the marriage.

Matrimonial property, on the other hand, is divided equally between the divorcing spouses. This distinction may often be straightforward. However, there are often difficult cases where it is argued that during the course of the marriage items of non-matrimonial property have become matrimonial (i.e ‘matrimonialisation’).

Mingling or mixing non-matrimonial property with the other spouse can erode the effectiveness of the non-matrimonial property argument. Take, for example, a spouse who brings to the marriage a large sum of money but uses that to purchase a joint property. Whilst at the outset of the marriage that money was non-matrimonial property, its application towards the purchase of an asset in the joint names of both spouses changes the character of that asset from non-matrimonial to matrimonial. In effect, it “matrimonialises” the non-matrimonial property. The effect of mingling can therefore be hugely significant, and it can change the question as to whether wealth brought to the marriage or inherited is kept to one side or is susceptible to claims by the other spouse.

Standish develops the line of case law regarding the proper application of the sharing principle, with the Supreme Court considering two questions of fundamental importance to consider upon divorce:

• When does non-matrimonial property become matrimonial property in the context of financial remedy proceedings upon divorce; and
• How should the ‘sharing’ principle be applied to such property?

Questions answered

When does non-matrimonial property become matrimonial property in the context of financial remedy proceedings?

As with everything involving the courts, it is simply not possible to provide a clear answer. We cannot repeat too often to clients that judges have a considerable degree of discretion.

In general terms, however, we can determine that non-matrimonial property is usually treated as matrimonial over the course of a long marriage, particularly where the property has become intermingled or “matrimonialised” and used in whole or in part to support the family. For example, if property or funds that one party brought to the marriage are used jointly by a couple to purchase a family home, it may be that those resources have been ‘matrimonialised’.

How should the sharing principle be applied to such property?

Once again, the answer is “it depends”. A judge will often adopt an arbitrary percentage split to reflect the fact that one side has contributed far more financially to the marriage. This has been the case already with Standish as has been shown above with the various court hearings. It is also rare for a judge use a calculator to decide how property should be divided in those circumstances and will tend to respond instinctively to decide on what is fair. It should also be remembered that “need” (yet another highly subjective term) will always trump the principle that non-matrimonial property is ringfenced.

Although Standish involved significant wealth, the principles established in the case apply equally to “small money” cases. In cases where the matrimonial assets are insufficient to meet the needs of both parties, the court may include non-matrimonial property in the division to ensure that housing and income needs are met. This reinforces the court’s flexibility in ensuring fairness, even if it means using non-matrimonial assets to satisfy needs.

How will the outcome of Standish impact how matrimonial property is defined?

Standish has already reduced the likelihood that pre-marriage assets will be treated as “matrimonialised”. The Supreme Court will either support this view or restore some of the award of £45m that the High Court judge at the first hearing concluded would be an appropriate share of the husband’s wealth.

This was a long marriage, however, and as always, the facts of a particular case and the behaviour of the couple involved have a significant effect on the outcome. And of course, there is always an element of gamble (as we mentioned above, judges have a considerable degree of discretion).

How can you protect your assets pre- and post-marriage?

For spouses entering a marriage with significant personal assets, a pre- or post-nuptial agreement can be an effective way to protect that wealth should the worst happen. Entering into marriage with the knowledge that hard-earned assets and business interests have been protected/accounted for means that couples can have peace of mind and know where they stand from the outset.

Although a pre-nup is not legally binding in England and Wales, since 2010 and the Supreme Court’s judgment in Radmacher v Granatino [2010] UKSC 42, the law has evolved such that a pre- or post-nuptial agreement will provide significant protection to those seeking to protect assets. A post-nuptial agreement operates in a similar way to a pre-nuptial agreement.

In light of the changes to inheritance tax brought by last year’s Autumn Budget, many couples and families have responded by considering ways to minimise tax exposure, including through lifetime gifting to family members. For business owners, this may also include gifting shares in a business. The Standish case is a reminder that such transactions can carry unintended consequences. Mr Standish had transferred some of his resources to his wife with a view to avoiding inheritance tax and with the ultimate plan of those assets being held in a discretionary offshore trust.

A post-nup should have been or be considered at a time when an asset transfer is being contemplated, even if it is subsequently discounted for fear of it undermining the tax planning exercise. A post-nup could make clear whether a transfer of resources is fully intended by the parties to be an outright gift or some form of “conditional” gift arrangement.

This intention may affect a later claim that the source of the wealth protects it from being shared on divorce, and could affect the efficacy of the tax planning, but at least the parties would have clearly weighed up the pros and cons. This will also help to ensure that couples can achieve their planning objectives while also mitigating risks.

There are of course disagreements between what the family lawyers may seek to achieve, namely protecting the source of the asset and limiting sharing claims for the gifting party, and what the financial advisors and private client lawyers seek to achieve, that being minimising tax and showing that there is no retained interest in the asset. Therefore, any decisions should be considered carefully and holistically with coordinated advice from multiple experts to ensure no complications arise in the event the worst-case scenario occurs.

Final Thoughts

The Standish v Standish appeal highlights the continuing complexity and discretion involved in dividing assets on divorce, particularly when substantial wealth and non-matrimonial property are in question. As the legal landscape continues to evolve, the Supreme Court’s decision could have a lasting impact on financial remedy proceedings and asset protection strategies.

For advice on what steps you should take if you are getting married, or how to deal with divorce / civil partnership dissolution, please reach out to a member of our Family Law Team for expert advice.

Contact us today.

Additional resources:

• Divorce & Finances: Frequently Asked Questions
• Pension Sharing in Divorce Settlements
• Financial Disclosure in Divorce

& more case analyses…

• CG v DL [2023] EWFC 82
• ST v AR [2025] EWFC 4 Part 1 & Part 2
• Gohil v Gohil & Ors [2025] EWHC 3646 (Fam)