At first glance, a case concerned with whether a transfer of assets amounting to £80 million should form part of the financial division on divorce may not seem to apply to many couples. However, the recent case of Standish v Standish [2025] in the Supreme Court may have consequences that extend far beyond the parameters of cases involving extensive wealth.
Standish looked at the distinction between matrimonial and non-matrimonial assets and the general distinction made between these by the courts:
- Non-matrimonial assets being pre-marital assets brought into the marriage by one spouse or assets received during the marriage from an external source such as gifts or an inheritance.
- Matrimonial assets being earned or acquired during and as a result of the marriage.
For the first time, the Supreme Court adopted the language of ‘matrimonialisation’ – the process by which a pre-marital asset can become a marital asset.
How does ‘matrimonialisation’ occur?
Whether a pre-marital asset becomes ‘matrimonialised’ will depend on 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.
This is important for spouses who have brought significant pre-existing assets into their marriage:
- Non-matrimonial assets are not presumed to form part of the shared marital pot in the same way that matrimonial assets are.
- Whilst they can be divided if a spouse’s needs require it, or to compensate a spouse who has given up their career through marriage, the starting point is that they are not to be shared.
The danger
The longer a marriage goes on, the greater the risk to a spouse who has brought pre-marital assets into the marriage that they will be shared on separation. The court carries out a complex analysis to decide whether or not an asset should be treated as ‘shared’ and a court’s determination can be difficult to predict. The best way to protect these assets is by entering into a nuptial agreement so everyone is clear from the start how the assets should be treated.
Whilst pre-nuptial agreements may be the most well-known option, post-nuptial agreements entered into after marriage, also help to offer clarity should the marriage break down.
So, what is a post-nuptial agreement?
A post-nuptial agreement is an agreement made after the parties have entered into a marriage or civil partnership and it sets out how the parties’ assets, both marital and non-marital, will be divided on separation. Post-nuptial agreements incorporate similar principles to those used for pre-nuptial agreements.
The impact of nuptial agreements
- Neither a pre or post-nuptial agreement is 100% binding upon a court.
- However, if it was freely entered into by both spouses with a full appreciation of the implications of doing so, and the terms are found to be fair then the court will likely be persuaded to approve a financial order reflecting its terms.
- The court will consider various pre-requisites such as whether they each received independent legal advice as to the contents of the agreement before signing it, if there was full and frank disclosure of their financial circumstances and whether there has been a change in circumstances since the agreement was signed, such as the arrival of a child.
How can post-nuptial agreements help protect your assets in the advent of Standish?
Post-nuptial agreements can mitigate the risk of ‘matrimonialisation’ and to protect assets brought into the marriage from being shared upon divorce.
It is advisable to seek advice if:
- you have certain assets that you wish to ringfence.
- you have received or are due to receive an inheritance.
Mark Heptinstall, Partner and Head of the Family Team at Slater Heelis: ‘‘’Standish has clarified that pre-marital assets can become marital assets through a process known as ‘matrimonialisation’. Court proceedings are often unpredictable for various reasons and are costly and stressful. The court will always be guided by the overarching principle of fairness, but validly entering into either a pre or post-nuptial agreement remains a highly effective way to agree how your assets should be divided in the event of separation’’.
Expert Support
At Slater Heelis, our family solicitors have extensive experience in drafting both pre and post-nuptial agreements. We understand the concerns and worries that either party may have about entering into an agreement as the financially stronger party or not.
Whether you need advice, or help drafting a pre-or post-nuptial agreement, our team will guide you through the process. We understand the need to avoid acrimony and to build such an agreement with your spouse, whilst ensuring your position is protected.
Contact our family law team today to discuss how we can best assist you.
Get In Touch
Mark Heptinstall MCIarb is the Head of the Family Department. He holds two part-time judicial appointments firstly as a Deputy District Judge sitting across the North West dealing with all types of civil and family cases. He specialises in divorce law, financial proceedings, children’s proceedings and high net worth cases.
If you’d like to speak to Mark or one of our other experienced family lawyers please don’t hesitate to get in touch by calling 03330 606 026 or filling out our online contact form.
