A Critical Take on Standish

In this article I, a junior barrister of middling professional credibility, will take aim at the Supreme Court’s judgment in Standish[[1]] and suggest the biggest brains in the legal land got it wrong. For those unfamiliar with the facts of the case, look no further than Calum Smith’s two excellent and digestible summary articles.[[2]] Most readers will know the thrust of it. The case was all about the correct approach to be taken to the concept of ‘matrimonialisation’ (aka ‘mingling’, ‘mixing’, ‘transmutation’, etc). This article deals with one question: whether the ‘new test’ announced by the Supreme Court for matrimonialisation is worse than the ‘old test’ enunciated by the Court of Appeal at the prior stage of the appellate process.

‘Matrimonialisation’ describes the concept whereby a non-matrimonial asset (that would otherwise not be subject to the sharing principle) becomes wholly or partly matrimonial by dint of something that happened to that property during the marriage. The question is what factor, or factors, might cause such a transformation.

The old ‘test’ for matrimonialisation was found in Lord Wilson’s three K v L [2011] EWCA Civ 550 ‘situations’ as reformulated slightly by the Court of Appeal in Standish.[[3]] It is really the second ‘situation’ we are concerned with here (the first is where the property has been rendered contextually insignificant by the passing of time and acquisition of matrimonial property, the third is where it has been folded into a family home). The reformulated second ‘situation’ was expressed as follows: ‘The extent to which and the manner in which non-matrimonial property has been mixed with matrimonial property mean that, in fairness, it should be included within the sharing principle’. The Court of Appeal added that ‘the concept of matrimonialisation should be applied narrowly’. The focus of this test was on the act of mixing (e.g. the transfer of inherited funds to a joint account).

The new test is at [52] of the court’s judgment:

‘There is no good reason to treat matrimonialisation as a narrow concept. It is neither narrow nor wide … what is important … 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.’

‘Shared between them’: a flawed definition

The new test moves away from the specific act of ‘mixing’ and widens the inquiry to the more general notion of ‘treatment’. But what does it mean for a married couple to ‘treat an asset as shared’? We do not have marital property regimes in this country. I have come across three categories of comprehension as to what being married means in relation property rights and financial claims:

• People who do not have a good understanding of what marriage means for property rights and financial claims. Inhabitants of this category range from hawkish professionals who are horrified to discover that their spouse might have any claim against wealth generated by dint of ‘their’ hard work, to people who operate on an unspoken assumption that financial assets would probably be divided equally on divorce because that sounds fair.
• People who have some understanding of what marriage means for property rights and financial claims and choose not to do anything to regulate said rights and claims before or during the marriage.
• People who have some understanding of what marriage means for property rights and financial claims and choose to do something about it by taking advice and entering into a marital agreement.

We don’t need to consider people in the third category – those individuals will probably have regulated the issue of matrimonialisation in their marital agreements. In my experience, people in the second category are very rare. So, we are mainly focused on people in the first category: those who don’t really know what marriage means for property rights and financial claims.

What does it mean for people in that first category to ‘treat an asset as shared’? Or to do the opposite? These people are generally not dealing with their assets in anticipation of a divorce in the future. Most of the time, their dealings with assets will be driven by practical considerations, frequently tax optimisation.

Take for example a happily married couple of 10 years, one of whom inherits a small rental property from their late aunt: obviously non-matrimonial. The spouse is a higher rate taxpayer, so transfers beneficial title to the property so that it is held by them (1%) and their spouse (99%) to spread the tax load. If a messenger from the future suddenly appeared to forewarn of a divorce 5 years down the line, of course the spouse would say that the transfer was not intended to ‘share’ the asset but merely to obtain a tax saving. Absent that messenger, there would be no such expression of intention. In fact, the idea of ‘sharing’, or ‘not sharing’ the asset would probably not have entered either parties’ head.

This is the nub of the problem. The Supreme Court’s formulation rests tacitly on the idea that parties’ treatment of assets during a marriage is, to some extent, informed by their knowledge of a future divorce. This is different to the situation pertaining to unmarried cohabitees who co-own property, most of whom understand that they are not bound together in a status conferred by civil law that requires a legal action to undo. Contemporary matrimonial law is structured around the premise that a marriage is a partnership of equals who will contribute to the common project of the relationship in different but equal ways. It imports a fiction that all assets generated by parties during a marriage are intended to be treated as shared, regardless of what parties actually intend. During a marriage, insofar as financial remedy law is concerned, it is not supposed to matter who is doing what and who owns what. Unless reflected in a marital agreement, the actual subjective intentions of parties as to how assets should be treated is not given any weight in the balancing act of a financial remedies claim, with two exceptions. The first is the dubious notion of ‘unilateral assets’ birthed in Sharp v Sharp [2017] EWCA Civ 408, described by Mostyn J as an ‘absolute shocker’[[4]] and largely swept under the judicial carpet. The second is chattels, where an unspoken and arbitrary practice has developed of excluding them from the divisible asset pot unless they are too valuable for this to be done with a straight face. But aside from those carve outs, it is no defence to a sharing claim to say ‘well, I accept that I did not foresee divorce, but I had always thought my saved bonuses were my money and I certainly didn’t and don’t want my spouse to have half of the balance’.

To repeat: for good reason, modern matrimonial law ignores parties’ intentions as to how assets should be dealt with between them on divorce unless reflected in a marital agreement. Why should that logic be suspended in relation to assets from external sources?

Worked examples

This problem is best illustrated with the example of pension apportionment: the process of identifying non-matrimonial pension and deciding whether it should be excluded from another party’s claim. It has long been accepted that pension accrued outside the boundaries of a marital relationship can constitute non-matrimonial property. In broad terms, one of three actuarial techniques can be used to quantify the proportion of pension benefits accrued outside the marriage. The court is then tasked with deciding the extent to which that proportion should be reflected in any pension sharing orders made.

The now settled approach, identified in both reports of the Pension Advisory Group and summarised by HHJ Hess in SP v AL [2024] EWFC 72 (B), is that the court will generally not endorse apportionment of pensions in a case where the assets are insufficient to meet retirement needs, albeit will be mindful of the necessity of a nexus between the relationship and any need for retirement income. This is no more than the ‘needs’ beats ‘sharing’ argument, writ small in the niche context of pensions. In my experience, apportionment arguments are most likely to be successful in short childless marriage cases (because there is no causal nexus between the marriage and the need for retirement income) and mid to high capital cases (where a surplus of marital non-pension assets allows retirement needs to be met without invading non-marital pension).

Prior to Standish in the Supreme Court, it was very difficult for a pension asset to be matrimonialised because pensions are definitionally hard to ‘mix’. Let’s now look at this against the new Standish test. Take an 8-year childless marriage between parties in their early forties, with substantial pre-accrued pension assets on one side. The pension holder argues that their pension should be apportioned to share only benefits accrued during the marriage. The other party argues that this should not happen, because during the marriage they treated the pension as shared. The pension holder argues that is ridiculous, how could they have treated a pension not accessible for another 15 years as ‘shared’? The other party says, ‘well obviously we intended to be married until old age at which point we’d live off our shared pension assets, including the pension you acquired during the marriage’. What retort is there to this? Nobody could seriously suggest that they harboured an intention to only share pension benefits accrued during the marriage with their spouse on retirement. What the pension holder would want to say is ‘well, yes, but that was if we stayed married, I never intended to share it with you if we got divorced!’

Consider now the quantification of the non-matrimonial element of a business asset. Readers will be familiar with the various methods for delineating the non-matrimonial element of business assets with lifespans straddling the period of a marriage. The Martin v Martin [2018] EWCA Civ 2866 linear apportionment method, the Robertson v Roberston [2016] EWHC 613 (Fam), [2017] 1 FLR 1174 impressionistic approach, and the Jones v Jones [2011] EWCA Civ 41 ‘springboard’ adjusted indexation analysis, to name a few. All the analysis in these cases is trodden asunder if the focus all along should have been on whether the business asset had been ‘treated as shared’. How would that question even be approached? In most cases, an applicant spouse will have no role or interest in the business. It is unlikely that there will have been discussion between spouses during a marriage about how proceeds would be allocated or applied in the event of a hypothetical sale. The respondent would say ‘well the applicant had nothing to do with the business, they barely even knew what it did – of course my shareholding wasn’t treated by us as shared’. The applicant would say ‘the shareholding formed the economic bedrock of our marriage, it paid for our lifestyles, of course we treated it as shared’. Who is right?

The question of whether parties treated an asset as shared during a marriage is a meaningless one. Generally, the ownership of assets crystallises as an issue for parties on one of two events: divorce and death. But other than in contemplation of these two events, normal people tend not to think too much about ‘sharing’ assets, let alone what their behaviours are signalling about their intentions in this regard.

Intention and evidence

Is all this really a problem? The law has ascertained proprietary rights by examining the ‘treatment’ of assets for years in the context of implied trusts. Why won’t this same approach apply in the matrimonial context? To answer that, let’s return to the building blocks of judicial determination in this context.

First, remember that matrimonial law deprecates attempts to analyse historical goings on in a marriage: the figurative ‘rummage in the attic’. It also dislikes over reliance on human memory. Readers are familiar with Leggatt J’s iconic proclamations in Gestmin v Credit Suisse & Ors [2013] EWHC 3560 (Comm), flagging the ‘misconception that memory operates like a camera or other device that makes a fixed record of an experience’, and reminding us that:

‘external information can intrude into a witness’s memory, as can his or her own thoughts and belief, and both can cause dramatic changes in recollection … The process of civil litigation itself subjects the memories of witnesses to powerful biases … the nature of litigation is such that witnesses often have a stake in a particular version of events … .’

Secondly, remember what non-matrimonial property is. It is a judicial construct, created as a tool to assist in the assessment of a fair outcome. It is essentially a legal test: an ‘abstraction or construct’.[[5]] Legal tests are exercises of evaluative decision making, based upon the assessment of facts, which in turn must be found by the court.[[6]] We are told by the Court of Appeal in Hart v Hart [2017] EWCA Civ 1306 that in dealing with disputes about non-matrimonial property, the court must ‘make such factual decisions as the evidence enables it to make’.

Thirdly, consider ‘intention’. The word does not explicitly appear in the Supreme Court’s test, but absent any guidance as to what behaviours might constitute ‘treating an asset as shared’, it feels inevitable that parties are going to argue about what they intended. A party’s intention is a question of fact. It is analogous to the state of a person’s mind, which is ‘as much a fact as the state of his digestion’ (Edgington v Fitzmaurice (1885) 29 ChD 459). Insofar as the law is concerned, a party’s state of mind is an abstract fact: ‘not something that can be proved by direct observation … it can only be proved by inference or deduction from the surrounding evidence’ (Mostyn J in Basson v General Medical Council [2018] EWHC 505 (Admin)).

Fourthly, remember that the civil courts are not analysing untrammelled intention in the context of implied trusts. Even in the post-Stack v Dowden [2007] UKHL 17 era, an implied common intention constructive trust will generally require a direct financial contribution to raise an inference that there was in fact a common intention to share beneficial ownership: Lloyds Bank plc v Rossett [1990] UKHL 14. Detrimental reliance must also be established (although the two might overlap). Proprietary estoppel requires reliance and detriment. These requirements are concrete facts to be found (was money paid, when, how much, what action was taken/not taken, what detriment was suffered), as opposed to an abstract fact (intention) which can only be inferred from surrounding evidence.

So now let’s return to matrimonialisation. The Supreme Court did not fasten any gateway conditions (financial contribution, detrimental reliance) to its new test. It is highly unlikely that there will be direct contemporaneous documentary evidence of an ‘intention to share’. Most likely is that the court will now be invited by parties to infer as a fact an ‘intention to share’ based on low fidelity recollections of discussions that took place years, perhaps decades ago.

The best evidence of intention must surely be the transfer of a non-matrimonial asset into joint names or the other parties’ sole name, i.e. ‘mixing’ as Wilson J previously alighted upon. But we are told by both the Court of Appeal and the Supreme Court in Standish that: (1) legal title is not determinative; and (2) transfers for tax purposes won’t establish that parties have treated an asset as shared without ‘some further compelling evidence’.[[7]] It was not sufficient in Standish, although the facts of that case are not particularly useful to us. Standish was a rare case in where there was reliable evidence that the transfer of the £77m to the wife was intended as only the first stage of an estate planning action: a halfway house to the ultimate settling of the wealth in trusts for the benefit of the children. Anecdotally, the most common reason I have seen given for the transfer of an asset between spouses during a marriage is to obtain some kind of tax advantage. If transactions made with that primary aim are not sufficient to amount to ‘treating an asset as shared’, it is difficult to imagine what is. Few spouses inherit a property and transfer it into joint names to symbolically reflect the fact that it is now a ‘shared’ as a family asset. Why go to the trouble?

Conclusion

So to recap:

• The Supreme Court has inserted a new legal test for matrimonialisation that doesn’t make much intrinsic sense.
• Without saying it out loud, the test draws focus to parties’ intentions. This marks a divergence from the direction of modern matrimonial law, which deliberately ignores parties’ intentions unless reflected in a marital agreement. This decouples the approach taken to matrimonialisation from the rest of the court’s inquiry.
• The Supreme Court has decided that one of the most common reasons for married couples quite literally sharing an asset between them (transferring it for tax purposes) will not be sufficient to show they intended to treat it as shared absent some ‘other compelling evidence’.
• The new test encourages the court to find facts as to intention in an evidential wasteland, populated mostly with self-serving memories of things said and done years ago, all without the critical gateway conditions that have emerged in the common law on implied trusts.

At the 2025 Financial Remedies Conference, attendees witnessed a spirited debate between Brent Molyneux KC and Petra Teacher facing down Justin Warshaw KC and Kyra Cornwall. The topic: ‘This House Believes Matrimonialisation is a Load of Bo**ocks’. An audience straw poll before the debate saw only a handful of people in favour of the motion. An exit straw poll showed few conversions. It appears that most are still supportive of the idea of matrimonialisation, even as reframed by the Supreme Court. But some dissenters might take the view that the new test is so bad, matrimonial law would be better off if the concept were scrapped altogether. Ironically, the Court of Appeal considered this possibility in Standish, before dismissing it in a single sentence.

[[1]]: Standish v Standish [2025] UKSC 26.

[[2]]: ‘Source not title: Some First Reflections on Standish’, 1 July 2024 and ‘Final Reflections on Standish: Was It All Worthwhile?’, 9 July 2025, both available on the FRJ website at https://financialremediesjournal.com/author/calum-smith/

[[3]]: Standish v Standish [2024] EWCA Civ 567.

[[4]]: Mostyn J interviewed in FLBA’s Family Affairs magazine, summer 2019.

[[5]]: Mostyn J, Address to the Kong Kong Bar Association, ‘Rules, Rule OK!’, 25 April 2019.

[[6]]: In Hart, Moylan LJ suggested that the assessment of non-matrimonial property was a ‘partly discretionary’ exercise. Mostyn J disagreed with this analysis in his address to the HKBA, who emphasised that whilst the process of assessment is subjective, that does not make it discretionary. I respectfully agree with Mostyn J.

[[7]]: It is ironic that the Justices were keen to emphasise that the concept of mingling is ‘neither narrow nor wide’, but felt the need to suggest that additional evidence to demonstrate that a transfer for tax purposes was intended to treat the asset as shared would have to be ‘compelling’.