Standish One Year On – Is There Agreement As to What It Means?

In his Financial Remedies Journal blog, ‘Final Reflections on Standish: Was It All Worthwhile?’ (9 July 2025), Calum Smith observed inter alia that:

‘Because Moylan LJ [in Standish v Standish [2024] EWCA Civ 567)] found that the 2017 Assets had not been matrimonialised, and the Supreme Court agreed, there is little analysis in either judgment of how the courts should treat a matrimonialised asset. It is unclear whether matrimonialisation is a principle designed in black and white or a spectrum of grey. Previously, it was commonplace for judges to depart from equality to reflect a non-matrimonial source. While that approach was criticised as lacking intellectual rigour, it has not been expressly criticised by the Court of Appeal or Supreme Court in Standish.
 
If matrimonialisation signifies an irreversible “transformation” of an asset’s character “over time”, and the importance of the source of an asset diminishes during that period, there seems to be no good reason to reflect the source of an asset that, by the time it has matrimonialised, is of minimal or no importance. This point is supported by para [50] of the Supreme Court’s judgment, which, having clarified that equal sharing is the appropriate and principled starting position, adds, “once non-matrimonial property is excluded, much of the justification for not applying equality in sharing fades away”. It is, therefore, anticipated that judges may need some persuading that matrimonialised property should be shared other than equally.
 
If a departure from equal sharing is justified on the facts of a given case, it seems unlikely that it could extend beyond a 60/40 division while remaining within the broad boundaries of fairness.
…
If matrimonialisation has occurred, the court will be left with a discretion to determine whether to share that asset equally on the basis that it has undergone an irreversible transformation into matrimonial property which, as we are reminded, should “normally” be shared equally; or whether to reflect the non-matrimonial source of the asset in a departure from equality. It is contended that the correct approach, following this judgment, is that the asset should be shared equally.’

These observations were unsurprisingly prescient. The question of whether property that is matrimonial property – whether because it always has been or is found to have become such as a result of ‘matrimonialisation’ – has as a consequence to be shared equally has become one of the main areas of debate in the first instance decisions over the last year.

The citable first instance decisions (so far as the author is aware) are (i) ED v AP [2025] EWFC 399 per His Honour Judge Hess (23 September 2025); (ii) LIN v PAR [2026] 1 FLR 712 per Peel J (21 November 2025); (iii) LP v MP [2026] 1 FLR 1089 per Cusworth J (22 November 2025); (iv) RRE v JPR [2026] EWFC 7 per Sir Jonathan Cohen (13 January 2026); (v) BS v HC [2026] EWFC 20 (B) per His Honour Judge Hess (3 February 2026); (vi) BC v BC (No 2) (Matrimonialisation; Division of Shareholding; Provision for Debt) [2026] EWFC 37 per Garrido J (20 February 2026); (vii) Thirsk v Thirsk [2026] EWHC 1501 (Ch) per Cusworth J (15 May 2026) [heard in the Chancery Division, Business and Property Courts – a claim under the I(PFD)A 1975]; and (viii) TP v OP per Trowell J [2026] EWFC 189 (26 June 2026).

At the centre of the debate is the following of the legal principles from the Supreme Court’s judgment (reported at [2025] 2 FLR 489):

‘[50] Thirdly, the sharing of the matrimonial property should normally be on an equal basis. Although there can be justified departures from that, equal sharing is the appropriate and principled starting position. Indeed, once non-matrimonial property is excluded, much of the justification for not applying equality in sharing fades away.’

There is seemingly no immediate consensus as to whether an asset that is (or has become) matrimonial property must thereafter be shared equally.

In LP v MP [2026] 1 FLR 1089 Cusworth J stated (emphasis added):

‘[30] In Standish v Standish [2024] EWCA Civ 567, Moylan LJ said from [164] that:

 

“… the court will typically conclude that the former matrimonial home should be shared equally although this is not inevitable as shown by cases such as FB v PS …

 

[165] … Does fairness require or justify the asset being included within the sharing principle?

 

[166] The conclusion that it does, … does not mean that it must be shared equally. The submission by [counsel] that, once an asset is matrimonialised and treated as matrimonial property, it must be shared equally is unsupported by any authority and would be contrary to the objective of a fair outcome. This is because, again as Mostyn J said in JL v SL (No. 1) at [19], it may be that the ‘non-matrimonial source of the moneys in question’ remains ‘a relevant consideration’. In its evaluation of all the relevant factors … it would be perverse if the court could not decide that the non-matrimonial source, in whole or in part, of an asset treated as matrimonial property could not justify an other than equal division.”

 

[31] Of course, I recognise that, when the case of Standish went to the Supreme Court – [2025] UKSC 26 – Lord Burrows and Lord Stephens made clear at [50] that:

 

“… the sharing of the matrimonial property should normally be on an equal basis. Although there can be justified departures from that, equal sharing is the appropriate and principled starting position. Indeed, once non-matrimonial property is excluded, much of the justification for not applying equality in sharing fades away.”

 

[32] I do not take from that expression however that their Lordships intended to move the test away significantly from what had been the established principle enunciated by the Court of Appeal – their use of the word “normally” can surely be equated very closely to Moylan LJ’s use of “typically” in the passage of his judgment cited above. Whilst they were at pains to express at [52] their disagreement with his formulation that the concept of matrimonialisation should only be applied “narrowly”, by stating that “It is neither narrow nor wide”, there was no suggestion of any correction to other parts of his reasoning.’

However in BC v BC (No. 2) (Matrimonialisation; Division of Shareholding; Provision for Debt) [2026] EWFC 37 Garrido J stated:

‘[40] The value of these shares having been matrimonialised by 2014 in the ways I have described, should their original non-matrimonial character nevertheless still be recognised by a departure from equality when I make a financial order in 2026? In my judgment, the answer to that question must be ‘no’.
 
[41] In my judgment, either an asset is non-matrimonial, in which case it is excluded from equal sharing, or it is matrimonialised, in which case it is included in equal sharing along with all other matrimonial property (unless there is another, additional justification for departure from equality). I take from paragraph 50 of Standish that there is no room for a hybrid treatment of assets that have been matrimonialised: they are subject to the same normal rule of equal sharing as other matrimonial assets, and the same limited justifications for departure, for example and perhaps most commonly, to meet needs, which are not relevant in this case. After 18 years of marriage there is no room for an unprincipled, randomly alighted upon, 5% (why not 4% or 6%?) departure from the equal sharing of what I find to be now entirely matrimonial wealth.’

It is arguably difficult to reconcile these two views. Does a departure from equality have to take place when deciding whether an asset is or is not matrimonial property (whether as a consequence of matrimonialisation or not) on the basis that if it is matrimonial property it must be shared equally or can the departure take place once an asset is matrimonial property?

More recently in Thirsk v Thirsk and Others [2026] EWHC 1501 (Ch) Cusworth J stated:

‘[40] Prior to the decision in Standish, other judges have attempted to provide a satisfactory rationale for the basis upon which they have determined the size of the parties’ respective sharing entitlements. Without always appearing to use identical language or categorisation to that now understood, it is clear that the principles which they have applied have been very much in line with what the Supreme Court have now mandated …’

Having previously cited from K v L (Non-Matrimonial Property: Special Contribution) [2011] 2 FLR 980 he thereafter cited from JL v SL (No. 2) (Appeal: Non-Matrimonial Property) [2015] 2 FLR 1202 and S v S (Non-Matrimonial Property: Conduct) [2007] 1 FLR 1496 per Burton J before continuing:

‘[42] Analysing the ratio of these decisions it becomes clear that the judges involved have, in reality, not been dividing properly classed matrimonial assets unequally, but rather determining that some proportion of the assets in question, which have begun outside the marriage, but been employed ‘as part of the economic life of the marriage’, has in fact retained its non-matrimonial character. The size of that proportion will depend on all of the factual circumstances before the court in each case, including where relevant the scale of the non-matrimonial contribution, the extent of the assets’ employment during the marriage, the period of time over which it was employed, and possibly whether and if so to what extent the party introducing the asset intended that the asset be treated as shared. The fact of sharing, of course, might override or reduce the impact of any lack of intention to share, as this may generate a tension between how the parties have in fact treated an asset, and whether either of them intended by that treatment to share the asset. And it will be relevant that in this case, throughout the bulk of the relationship, the parties were not in fact married, so that finding any intention to share over time is more difficult.’

Therefore the question remains does an asset – or the part thereof – which is matrimonial property have to be divided equally?

More widely, does it matter? It is perfectly possible to achieve the same result arithmetically by a finding that the asset in question is hybrid and that which is matrimonial is then shared equally or alternatively by an unequal sharing of the entire matrimonial asset.

It is worth remembering when asking these questions that in Hart v Hart [2018] 1 FLR 1283 Moylan LJ observed:

‘[85] It is, perhaps, worth reflecting that the concept of property being either matrimonial or non-matrimonial property is a legal construct. Moreover, it is a construct which is not always capable of clear identification. An asset can, of course, be entirely the former, as in many cases, or entirely the latter, as in K v L. However, it is also worth repeating that an asset can comprise both, in the sense that it can be partly the product, or reflective, of marital endeavour and partly the product, or reflective, of a source external to the marriage. I have added the word ‘reflective’ because ‘reflect’ was used by Lord Nicholls of Birkenhead in Miller (at para [73]) and ‘reflective’ was used by Wilson LJ in Jones (at para [33]). When property is a combination, it can be artificial even to seek to identify a sharp division because the weight to be given to each type of contribution will not be susceptible of clear reflection in the asset’s value. The exercise is more of an art than a science.
 
[96] If the court has not been able to make a specific factual demarcation but has come to the conclusion that the parties’ wealth includes an element of non-matrimonial property, the court will also have to fit this determination into the s 25 discretionary exercise. The court will have to decide, adopting Wilson LJ’s formulation of the broad approach in Jones, what award of such lesser percentage than 50% makes fair allowance for the parties’ wealth in part comprising or reflecting the product of non-marital endeavour. In arriving at this determination, the court does not have to apply any particular mathematical or other specific methodology. The court has a discretion as to how to arrive at a fair division and can simply apply a broad assessment of the division which would affect ‘overall fairness’. This accords with what Lord Nicholls of Birkenhead said in Miller and, in my view, with the decision in Jones.
 
[97] Finally, I would repeat that fairness has a broad horizon. I recognise, of course, the need for clear guidance and principles when the court is given a discretion as wide as that contained in s 25 of the 1973 Act … However, this should not lead to the imposition of constraints which are not needed to achieve, and which deprive the court of the flexibility required to achieve, a fair outcome.’

These questions are not just interesting for their own sake. They form a significant part of the government’s consultation – A Fairer End to Relationships – which was published on 5 June 2026 and which closed on 14 August 2026. The narrative includes the following:

‘The Supreme Court has confirmed that the sharing principle applies only to matrimonial property and that equal sharing is the appropriate and principled starting position for the court, unless there is justification for departure. A departure may be required, for example, to meet the financial needs of individuals.
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The Government’s view is that the objective of sharing is to give equal benefit to the parties of matrimonial property by dividing matrimonial assets equally.
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The Government considers that clear statutory definitions of matrimonial property and non-matrimonial property would offer guidance on how couples might think about their property and indicate how a court would probably deal with the available assets.
 
As part of a codification-plus model, we consider that such definitions would be reflective of Standish, which clarified the approach to matrimonial and non-matrimonial property as previously developed in case law.’

The government – by express reference to paragraph [50] of Standish – is of the view that the Supreme Court has confirmed that equal sharing of matrimonial property ‘is the appropriate and principled starting position for the court, unless there is justification for departure. A departure may be required, for example, to meet the financial needs of individuals’. However, and as noted by Calum Smith, as Moylan LJ found that the assets that had been transferred by the husband to the wife had not been matrimonialised, and the Supreme Court agreed, there is little analysis in either judgment of how the courts should treat a matrimonialised asset.

As the FLBA noted under the heading of ‘Matrimonialisation’ in its response to the government consultation:

‘This concept was addressed at length in Standish. However, what was not fully addressed in Standish is the proportions in which an asset that has been “matrimonialised” might be shared, or whether the process of matrimonialisation is “all of nothing”, in which such assets are either equally shared or not shared at all. In the Court of Appeal in Standish, Moylan LJ was clear that matrimonialisation is not binary. An asset can be “matrimonialised” to a degree, but the process of matrimonialisation does not always make the entire asset fully matrimonial in character and thus equally shareable in every case. The Supreme Court in Standish did not appear to demur from this. It is similar to the way that matrimonial homes always fall into the “matrimonial” category, but are not necessarily always shared equally.’

Is the position (or should the position be) as advanced by Calum Smith in his earlier Financial Remedies Journal blog written after the Court of Appeal judgment, ‘Source not Title: Some First Reflections on Standish’ (1 July 2024), that the sharing principle applies equally to all matrimonial assets whereas matrimonialised assets should fall into a different category in which the non-matrimonial source may more generally be reflected by a departure from equality?

There is no doubt that a departure from an equal division of matrimonial property may be required to meet needs. But does the government – and do some first instance judges – also agree (for example) that the non-matrimonial source, in whole or in part, of an asset treated as matrimonial property can also justify a conclusion other than equal division?