Trusts, divorce and the Supreme Court: implications of Standish v Standish

It is widely known that England is one of the most generous jurisdictions in the world when it comes to divorce. Not only does the court make generous provision for the financially weaker spouse, but it also has wide-ranging powers to access trust assets worldwide, through an ability to vary a nuptial settlement or to consider the trust assets as a resource of the beneficiary spouse. Wealth protection should therefore be thought about carefully and at an early stage.

The Supreme Court’s recent decision in Standish v Standish [2025] UKSC 26 has highlighted that attention must be paid not only to wealth protection, but also to how spouses conduct their lives during the marriage. The way assets are treated during a marriage may be just as important as their legal ownership or original source.

This briefing summarises the implications for trustees and those advising them.

Standish – the facts

The husband had enjoyed a highly successful international banking career over several decades and had accumulated very substantial wealth prior to meeting the wife.

Wealth acquired prior to marriage is considered by the Family Court to be 'non-matrimonial', such that it is not subject to a sharing claim upon divorce, generally only being called upon to meet the needs of the financially weaker spouse. In contrast, wealth generated during a marriage is considered to be 'matrimonial' and can be expected to be shared between the parties on divorce.

The complication in this case was that in 2017 – 14 years after the relationship began and three years before it ended – the husband transferred assets (worth approximately £80m by the time of the trial) into the wife’s sole name (the '2017 assets'). The bulk of the 2017 assets had been generated by him prior to the marriage and were therefore non-matrimonial at the time of transfer.

The transfer formed part of an inheritance tax planning exercise designed to take advantage of the wife’s non-domiciled status. The intention was that, after an appropriate period, the wife would settle the 2017 assets into discretionary trusts in Jersey for the benefit of the parties’ two children. However, that step was never taken, and the wife retained the 2017 assets in her own name.

The key question for the court was, upon divorce, what was the status of the 2017 assets?

The Supreme Court’s decision – matrimonialisation of assets

The wife argued that the transfer of the 2017 assets to her had changed their status from non-matrimonial to matrimonial; they had been matrimonialised, and therefore, she was entitled to share them equally. Her arguments did not succeed, and on the facts, the Supreme Court concluded that transferring the 2017 assets did not matrimonialise them. In doing so, the Supreme Court made clear:

• Non-matrimonial property is not subject to the sharing principle.
• However, non-matrimonial property can be matrimonialised, bringing it within the scope of sharing.
• Whether matrimonialisation has occurred depends on how the parties dealt with the asset during the marriage and whether, over time, it was treated as shared between them.
• The period of time must be sufficiently long for that treatment to be regarded as settled.

Therefore, post-Standish, the classification of an asset as matrimonial or non-matrimonial will depend on the parties' intentions and how the asset has been treated over a period of time. Regardless of legal ownership or the source of funds used to purchase an asset, if the asset was treated as shared during the marriage for a settled period, it may be considered to have been matrimonialised and therefore fall into the assets to be shared on divorce.

Implications for trusts and trustees

The English Family Court has the power to vary a nuptial settlement. Alternatively, the court can consider trust assets to be a resource which the beneficiary spouse can call upon and so make an order directly against that spouse on the basis that the spouse will then ask the trustees for assistance in meeting their obligations under the order.

Standish may give a further route of attack against a trust on divorce. Applicants may argue that non-matrimonial assets held in trust have been matrimonialised by their use or 'treatment' over time for the benefit of the spouses or the family as a whole. How Standish will be applied to trust assets remains uncertain, but several questions arise.

In Standish, the court looked to the parties' intentions. Where the asset in question is held in trust, will the courts also look to ascertain the trustees' intentions? Further, how will the court approach differences between the trust deed and any letter of wishes (which may make clear that an asset is not to be regarded as matrimonial) and the reality on the ground (for example if the parties are using that asset and treating it as shared between them)?

Determining intention in relation to an asset or examining how a couple have treated an asset over a long period will require the court to rely on contemporaneous documents (emails, text messages, WhatsApp messages, letters of wishes) going back a number of years, as well as evidence from the spouses and third parties. These additional grounds for argument are therefore likely to result in more expense not only for the parties but also for trustees where a beneficiary is getting divorced.

Nuptialisation of trusts

An additional unresolved issue is whether a non-nuptial trust can become nuptial over time. The authorities are conflicting.

In Quan v Bray [2015] 2 FLR 546, Coleridge J was of the view that a non-nuptial trust could be nuptialised through benefit to the parties, whereas in Joy v Joy Morancho and Others (No 3) [2016] 1 FLR 815 at [109], Sir Peter Singer considered that a settlement could not be nuptialised – the nuptial element must be present at the outset. It is therefore likely that Standish may encourage renewed attempts to argue that trusts can be nuptialised by analogy with matrimonialisation of assets.

Best practice for trusts and asset protection

It is clear that, following Standish, parties must make their intentions explicit – whether by way of pre- or post-nuptial agreements, carefully drafted trust deeds, or ideally both, before entering into potentially matrimonialising transactions. They must then also live their married lives aligned with those expressed intentions to avoid a finding that over time an asset has in fact been treated as shared, and is therefore matrimonialised.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2026