What’s mine is not yours, till divorce do we part – non-matrimonial property after Standish v Standish [2025] UKSC 26

It is somewhat uncommon for a financial remedies case to make it the Supreme Court. The recent case of Standish v Standish [2025] UKSC 26 has shined a light on the important issue of non-matrimonial property, settling the law on this issue at the highest level. When a court is determining whether property is matrimonial or non-matrimonial, what matters more, the legal title or the original source of the funds? If the source is more important, can (and how does) non-matrimonial property become matrimonial property?

When dealing with any financial remedies case, a court looks to the factors in s.25(2) of the Matrimonial Causes Act 1973, but also the principles of needs, sharing and compensation. With the idea that the parties should ‘share’ the fruits of the marriage, what actually constitutes those fruits?

Case Background 

The Husband built up significant wealth in financial services over a number of years before he married the Wife. Shortly before separation, the Husband transferred around about £80 million in assets (‘the Transferred Assets’) to his Wife for the purpose of her setting up trusts and to navigate inheritance tax issues. However, by the time the parties separated, the assets were still all in the name of the Wife as she had yet to set up any trusts. 

Case History 

In the Family Court, Mr Justice Moor held that the Transferred Assets were originally non-matrimonial property but became matrimonial property when they were transferred to the Wife’s sole name. The Transferred Assets were therefore subject to the sharing principle. He then ordered that the Husband retain 60% of the matrimonial assets, whereas with Wife would have 40%. The Wife’s share awas then rounded down to £45 million (about 34% of the total assets). 

Both parties cross appealed to the Court of Appeal. In essence, the Court of Appeal held that:

1. Mr Justice Moor incorrectly made the transfer of the title of the Transferred assets as the determining factor as to their characterisation; 
2. The source of the Transferred Assets, rather than title, was the determinative factor; 
3. Nothing justified the conclusion that the importance and relevance of the source of most of the Transferred Assets being non-matrimonial in nay way diminished as a result of the transfer of those assets to the Wife; 
4. The transfer of the Transferred Assets did not matrimonialise them; and 
5. 75% of the Transferred Assets remained non-matrimonial. 

Legal Analysis 

The main question is essentially, when it comes to the sharing principle, what matters: the legal ownership or origin of property and if the origin matters more, can this be overcome?

The Judgment of the Supreme Court outlined five main principles:

1. There is a ‘conceptual distinction between matrimonial and non-matrimonial property.’ Non-matrimonial property is typically pre-marital property, or property acquired by inheritance or gift. Matrimonial property is property that consists of the fruits of the marriage partner or reflects the marriage partnership or is the product of the parties/common endeavour; 
2. Non-matrimonial property is not subject to the sharing principle, but can be subject to the principles of needs and compensation;
3. Equal sharing of matrimonial property ‘is the appropriate and principled starting position’, although justified departures can be made; 
4. Non-matrimonial property can became matrimonial property, by way of ‘matriomonialisation’; and
5. Transferring non-matrimonial property from one spouse to the other for tax purposes does not establish, without some further compelling evidence, that the parties are treating the capital asset as shared between them.

Well then, what constitutes ‘matriomonialisation’ of non-matrimonial property? The Court approved previous case law and came up with a non-exhaustive list of principles that underpin the concept:

1. Matriomonialisation is neither a narrow nor a wide concept; 
2. Over time matrimonial property of such value can be acquired so as to diminish the significance of the initial contribution by one spouse of matrimonial property; 
3. Over time non-matrimonial property initially contributed can be mixed with matrimonial property in circumstances in which the contributor may be said to have accepted that it should be treated by matrimonial property in the circumstances or in which, at any rate, the task of identifying the current value is too difficult; 
4. The contributor of non-matrimonial property has chosen to invest in the purchase of a matrimonial home which, although vested in his or her name – as in most cases one would expect – comes over time to be treated by the parties as a central item of matrimonialised property;
5. Of importance is how the parties have been dealing with the asset and whether this shows that, over time (being sufficiently long for the parties’ treatment to be regarded as settled), they have been treating the asset as shared between them. Matrimonialisation rests on the parties, over time, treating the asset as shared; 
6. Matrimonial property is not predetermined at the outset of a marriage but is governed by the parties’ intentions and how they treat the relevant asset over a period of time. Where a party has demonstrated an intention to use an inheritance for the benefit of the family, by translating it into actual use and enjoyment, the parties have elected to treat it as matrimonial property, even if its origin is outside the marriage; and 
7. Pragmatically, there will be times where the matrimonial property is so much greater than the non-matrimonial property that it is ‘not worth the candle’ and it is unfair for the parties to try to work out what percentage was non-matrimonial. In these cases, fairness demands that one should simply treat it all as matrimonial property. 

The Supreme Court, mostly, agreed with the Court of Appeal. Since the source/origin of the Transferred Assets were non-matrimonial, and that the clear intention of the transfer was for tax reasons, the Transferred Assets had not been treated as joint assets and were not ‘matrimonialised’. They remained non-matrimonial, and the Wife was not entitled to share in non-matrimonial assets. 

What does this mean for you?

This welcome judgment closes doors, but it also opens new ones. Realistically, most financial remedies cases start and end at the ‘needs’ stage. Therefore, all assets will be ‘on the table’ despite their origin or source. There will not be a need to debate whether something is matrimonial or not, as it will all be up for distribution to meet the needs of the parties. However, the Supreme Court has confirmed that non-matrimonial assets are strictly off the table for the sharing principle. 

It is welcome that the origin is more important than the legal title in determining what type the property is. That being said, this might encourage parties to try to argue that certain property has or has not been matrimonialised. This may cause evidential difficulties in proving the exact source of the asset or what the parties’ intentions were at various points in the marriage. 

It is helpful that the court has made it clear that there is a de minimis exception. There will be cases where the non-matrimonial property is so small in comparison to the matrimonial property, that it is not worth the court time or the expense of arguing the point. 

While clarifying the law, only time will tell if Standish will result in less litigation or more. 

10th Jul 2025

Tom Gilchrist

Call 2018 (2016 - New Zealand)