“MARRIAGE, it is often said, is a partnership of equals” (Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 A.C. 618, at [16] (Lord Nicholls) (“Miller; McFarlane”)). This observation, from the leading House of Lords decision on financial remedies on divorce, forms the basis of the sharing principle (this is not the only potential rationale, on which see E. Cooke, “Miller/McFarlane: Law in Search of Discrimination” (2007) 19 Child and Family Law Quarterly 98). Sharing is one of three strands of fairness (the others are needs and compensation) that courts apply when deciding financial remedies cases. The sharing principle is of most importance where the assets exceed the parties’ needs; in most cases, where the parties’ needs cannot be met from the available assets, needs dominate.

An important question about the sharing principle is what property it applies to. Case law has distinguished between matrimonial and non-matrimonial property, but until the recent Supreme Court decision in Standish v Standish [2025] UKSC 26, [2026] A.C. 506 (“Standish”) the significance of the distinction was unclear. Charman v Charman [2007] EWCA Civ 503, [2007] 1 F.L.R. 1246 (“Charman”) suggested that the sharing principle applied to all the parties’ property “but, to the extent that their property is non-matrimonial, there is likely to be better reason for departure from equality” (at [66]). Jones v Jones [2011] EWCA Civ 41, [2011] 3 W.L.R. 582, however, favoured separating matrimonial and non-matrimonial property at the outset, generally sharing the former but not the latter. In Standish, Lord Burrows and Lord Stephens state unequivocally that “non-matrimonial property should not be subject to the sharing principle” (at [48]) although they note that no previous judgments in fact appear to have shared matrimonial property (at [49]).

The parties in Standish cohabited from 2004, married in 2005 and separated in 2020. The husband contributed significant pre-marital wealth to the marriage: approximately £57 million in 2004 (equivalent to £155 million in 2025). A central issue was the status of a 2017 transfer of around £77.8 million from the husband to the wife to avoid inheritance tax on his estate. The funds were to set up trusts for the parties’ children. At first instance (ARQ v YAQ [2022] EWFC 128, [2022] 4 W.L.R. 112), the judge found that the transfer transformed the 2017 assets from non-matrimonial to matrimonial property which was subject to the sharing principle. However, the source of the assets remained significant, meaning that a fair division of the matrimonial property was 60:40 in favour of the husband. The Court of Appeal disagreed (Standish v Standish [2024] EWCA Civ 567, [2024] 4 W.L.R. 60), holding that the source of assets, rather than their title, was determinative. The 2017 assets had not been matrimonialised by the transfer and remained the husband’s non-matrimonial property. The Supreme Court upheld the Court of Appeal’s judgment.

Standish’s strict delineation between matrimonial and non-matrimonial property makes the definition of these terms important. In Miller; McFarlane, the Court did not speak with one voice. Lord Nicholls suggested that matrimonial property encompassed “property acquired during the marriage otherwise than by inheritance or gift” and, normally, the matrimonial home, however acquired (at [22]). Lady Hale favoured a narrower definition of “family assets” (at [149]), suggesting that “business or investment assets which have been generated solely or mainly by the efforts of one party” might be treated as non-matrimonial (at [150]). Subsequently termed “unilateral assets”, these have been treated as non-matrimonial in a short dual-career marriage without children (see Sharp v Sharp [2017] EWCA Civ 408, [2018] 2 W.L.R. 1617) but other cases express concern about the potentially discriminatory effect of excluding them more generally (see Charman; XW v XH [2017] EWFC 76, [2019] 4 W.L.R. 83).

Standish does not engage with this definitional disagreement. The Court suggests that “there is a conceptual distinction between matrimonial and non-matrimonial property [and that] [i]n general terms, this distinction turns on the source of the assets” and not their title (at [47]). The suggestion that non-matrimonial property is “typically pre-marital property brought into the marriage by one of the parties or property acquired by one of the parties by external inheritance or gift” echoes Lord Nicholls’s formulation (at [47]). However, the definition of matrimonial property as “the fruits of the marriage partnership or [property which] reflects the marriage partnership or is the product of the parties’ common endeavour” is potentially consistent with Lady Hale’s narrower definition (at [47]). Therefore, practically speaking, Standish may not alter existing approaches.

The Supreme Court also makes clear that matrimonial property should normally be shared equally and that non-matrimonial property may become matrimonial through matrimonialisation. The Supreme Court approved the obiter dicta of Wilson L.J. in K v L [2011] EWCA Civ 550, [2012] 1 W.L.R. 306 which suggested that property could become matrimonialised in three situations (at [18]). First, over time, the value of matrimonial property acquired jointly reduces the significance of an initial contribution of non-matrimonial property. Second, over time, matrimonial and non-matrimonial property have been mixed “in circumstances in which the contributor may be said to have accepted that it should be treated as matrimonial property or in which […] the task of identifying its current value is too difficult”. Third, the non-matrimonial property was invested in the purchase of the matrimonial home (whether or not held in joint names). The Supreme Court in Standish recognised that Wilson L.J. did not consider these to be exclusive categories, suggesting that “what is important (leaving aside matrimonial property resting on contributions from each party) 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” (at [52]).

There is a subtle distinction between Standish and previous case law on this point. Whereas cases such as Miller; McFarlane seem to see the passage of time itself as something that diminishes the importance attributed to non-matrimonial property, Standish seems to require a more definite “transformation” (at [51]). This places a burden on the party claiming a share of such property to prove the change in character and may restrict available claims.

Standish concerned a transfer to save tax. The Supreme Court said that “[i]n relation to a scheme designed to save tax, under which one spouse transfers an asset to the other spouse, the parties’ dealings with the asset, irrespective of the time period involved, do not normally show that the asset is being treated as shared between them. Rather the intention is simply to save tax” (at [56]).

In Standish, the intention was to save tax for the benefit of the parties’ children, not the wife (at [61]). As Cummings observes, “[p]lacing property into joint names, or the name of one spouse, will often be intended to minimise tax but this might also be intended to support the welfare of the family as a whole” (T. Cummings, “The ‘Matrimonialisation’ of Non-Matrimonial Property: Settled at Last?” (2025) Journal of Social Welfare and Family Law 1). Even if Standish is accepted on its facts, this statement may seem less attractive on different facts. It is not uncommon for wealthy spouses to transfer assets to their homemaker spouses for tax reasons. Given that the opportunity exists because of the marriage and that it saves the family tax overall, it is not clear that the wealthy spouse should be the sole beneficiary of that saving.

While Standish was a “big money” case (i.e. one in which assets exceed needs) (at [6]), the decision may have wider implications. There are suggestions that the principles are being applied “even in limited asset matters” (J. Cohen and L. Orman, “Standish v Standish: The Real World Impact on Financial Remedy Matters”, Today’s Family Lawyer, available at http://bit.ly/4u0t4Zp (last accessed 3 May 2026)). This is inconsistent with a long line of case law, including Standish, making clear that non-matrimonial property cannot be ring-fenced when it is required to meet needs (see for example, Miller; McFarlane and White v White [2000] UKHL 54, [2001] 1 A.C. 596) and is concerning. Further, many couples now divorce without access to legal advice and may not be aware of the distinction between needs and sharing cases. Finally, in the recent case of BS v HC [2026] EWFC 20 (B), which considered matrimonialisation in the pensions context, Judge Hess noted that “[r]ights in a pension, unlike cash or property, rarely become “mingled” during a marriage. They remain in the sole name of the person who earned the pension rights – that is just a feature of how pensions are held. They are never put into joint names” (at [35]).

Part of the wife’s claim for matrimonialisation in that case turned on the husband’s request that she register a property she had paid for in joint names because “it doesn’t matter that I am not contributing to the purchase price because we will share everything equally in our marriage, everything comes and goes out of the same pot” (at [35]). The lack of specific reference to his pension, and the presence of other assets to which the husband could have been referring, led Judge Hess to conclude that these words could not “fairly give rise to the husband’s pension rights thereby [becoming] matrimonialised” (at [35]). It seems, therefore, that pension assets may be very difficult to bring within the sharing principle post Standish.

While marriage remains a partnership of equals, perhaps, post Standish, the scope of that partnership is a little narrower.