We are joined by Rebecca Bailey-Harris (1 Hare Court) who was the first junior barrister for Mr Standish, and Sam Longworth (Stewarts) who was the lead partner for Mr Standish.

Rebecca tells us that the five principles in the judgment are:

1. There is a conceptual distinction between matrimonial and non-matrimonial property. In general terms, this distinction turns on the source of the assets. 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. In contrast, matrimonial property is property that comprises the fruits of the marriage partnership or reflects the marriage partnership or is the product of the parties’ common endeavour [para 47];
2. That the sharing principle only applies to matrimonial property and does not apply to non-matrimonial property [para 49];
3. Sharing  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 [para 50];
4. What starts as non-matrimonial property may become matrimonial property; “matrimonialisation”.  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.
5. The final principle relates directly to matrimonialisation in the context of the facts of this case. In 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.

Rebecca and Sam go on to talk about what might constitute dealing with the asset and whether this shows that, over time, they have been treating the asset as shared between them, and how intention is a component of that test.  They discuss that the Supreme Court specifically disapproved of  Moylan LJ saying  “the concept of matrimonialisation should be applied narrowly” in the Court of Appeal.  Therefore, although the Supreme Court says in terms matrimonialisation is neither narrow nor wide, many of us are likely to consider the test is wider than we previously understood it to be. 

Rebecca and Sam wrestle with the question of whether there will be a difference in how matrimonial property that has always been matrimonial, as opposed to property that has been matrimonialised will be treated.

We finish with some quick-fire questions about how to apply these principles to scenarios that crop up all the time:

• Inheritances – cash and property;
• A property purchased prior to marriage;
• Business acquired prior to purchase.