Surely, no-one can dispute that as a matter of fairness, what’s mine should be mine and what’s ours should be shared. But how does this principle play out in practice?
On 2 July 2025, the UKSC handed down its judgment in Standish v. Standish [2025] UKSC 26 offering much-needed clarity on what truly constitutes matrimonial property and the legal consequences of that distinction.
This ruling will undoubtedly shape Hong Kong law, aligning neatly with Step 4 (good reasons for departing from equal sharing) of LKW v. DD (2010) 13 HKCFAR 537, where Ribeiro PJ observed that “[t]he source of an asset may provide a reason for excluding it from the sharing principle on the basis that it is not an item of matrimonial property.”
Here are four key takeaways from this pivotal decision.
A. Matrimonial vs. Non-Matrimonial Property
Lord Burrows, delivering the unanimous judgment of the Court, draws a firm line in the sand: “the time has come to make clear that non-matrimonial property should not be subject to the sharing principle (though non-matrimonial property can be subject to the principles of needs and compensation).” (at §48)
B. Equal Sharing of Matrimonial Property
When it comes to matrimonial property, the baseline is a straightforward 50/50 split.
This is entirely sound. As Lord Burrows explains, “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.” (at §47)
Quite apart from title to the property not being determinative (at §47), it likely means that the duration of the marriage is also not determinative of whether matrimonial property should be equally shared.
Even in a short, childless marriage, assets acquired during the marriage are generally shared equally.
C. Matrimonialisation: When Non-Matrimonial Property becomes Matrimonial
However, duration of the marriage is relevant in the “matrimonialisation” of non-matrimonial property – a term that practitioners have been hesitant to use but have now received the express endorsement of the UKSC (at §51). This is where initially non-matrimonial property (not subject to equal sharing) becomes matrimonial property (subject to equal sharing).
Here’s where things get interesting.
The key and unifying question is: “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” (at §60).
This squarely places the focus on the Parties’ intention towards the asset (see in particular, §§53-54).
Examples of this include “mixing” (or “mingling”) non-matrimonial assets with matrimonial assets, or using non-matrimonial property to acquire matrimonial property.
These are two examples posed in the oft-cited passage of K v L [2012] 1 WLR 306 at §18 per Wilson LJ. It is clear that they are referrable back to the predominant focus on the Parties’ intention to transform the asset’s status. It is therefore clear that the situations described by Wilson LJ are non-exhaustive.
As mentioned above, time still matters here. “[T]he period of time must be sufficiently long for the parties’ treatment of the asset as shared to be regarded as settled.” (at §52).
The application of this principle was the most apparent in Standish:
1. This was by no means a short marriage, being one of 17 years and with 2 children.
2. The relevant conduct was H’s transfer of “non-matrimonial property” to W, pursuant to a tax-saving scheme 3 years prior to the divorce. It was intended that W would set up trusts to negate inheritance tax for their children.
3. In other words, there was an alternative explanation to the “mixing” – it was not to “treat the asset as shared between them”.
4. Separately, H also transferred H’s earnings during the marriage while W was a homemaker as part of the same tax-saving scheme. That portion was “matrimonial property” and to be shared on an equal basis.
D. Pragmitism over Perfection
In addition to the Parties’ intentions, there is a further justification for “matrimonialisation”.
Explaining the first example described by Wilson LJ K v L that “Over time matrimonial property of such value has been acquired as to diminish the significance of the initial contribution by one spouse of non-matrimonial property.”:
“[i]t rests on a pragmatic assessment that the matrimonial property is so much greater than the non-matrimonial property that it is “not worth the candle” … to try to work out what percentage was non-matrimonial. Fairness (in saving needless expense) demands that one should instead simply treat it all as matrimonial property.” (at §55)
This echoes the comment in LKW that “[e]ffort and expense should not be wasted in trying to establish a sharp dividing line between what is and what is not matrimonial property” (at §88).
E. Conclusion
Of course, in most cases, the Parties’ needs will ultimately guide and determine the Court’s decision on ancillary relief (ie. Step 2 of LKW). However, in “big money” cases where the sharing principle applies, Standish represents a landmark judgment, bringing much-needed clarity and direction to how the sharing principle is applied.
By drawing clearer lines between matrimonial and non-matrimonial property while recognising the reality that Parties’ intentions in relationships develop over time, the Court strikes a balance that respects individual contributions without losing sight of a marriage’s collective nature.
The full judgment for Standish v. Standish [2025] UKSC 26 is here.
