What does the BBC’s new glossy legal drama, tell us about divorce and marital breakdown. The reality is, not a great deal, but that doesn’t prevent us enjoying each episode like everyone else. The spoiler alert is, if you are considering starting the divorce process or dissolving a civil partnership, don’t believe everything you hear played out in the four walls of Kishan Law – the family law firm at the centre of the story.
As family lawyers, we know that the most significant developments in the field are often much less dramatic than the show would have us believe, but far more important.
One of the real issues currently shaping a substantial number of divorce situations and influencing the negotiations around financial settlements and the court’s determination of matrimonial financial cases, is the continuing effect of the very recent case of Standish v Standish.
Standish v Standish
The case involved assets worth many millions of pounds originally held by the husband and had been transferred to the wife as part of a tax-planning exercise before the parties separated. The central issue was whether as a result, those assets had become matrimonial property, and therefore capable of being shared, given their movement from the husband’s sole name and into the wife’s name. Despite what The Split Up will have you believe, not all wealth accumulated within a marriage ends up in one pot waiting to be divided. There are many far reaching principles that govern whether assets end up “in the pot” and hold status as matrimonial assets or “ringfenced” and hold status as non-matrimonial assets. These include looking at whether wealth originated before the marriage (was pre-marital), whether it was inherited, whether it was generated during the relationship and whether it has become matrimonial property through use during the marriage. The key question is whether there has been true matrimonialisation.
For many years, we advised clients that transferring assets into joint names, or between spouses, may support an argument that an asset is matrimonial and therefore subject to a sharing claim. Now, the transfer of assets between spouses does not automatically mean that non-matrimonial property is treated as matrimonial property.
After Standish, the analysis is much more nuanced. If this is something you need advice on, our team will carefully consider your individual situation and the real reason behind why those assets were transferred, examining the origin, source, treatment and character of that property. This might include looking at family investment structures, gifts, tax planning arrangements, family trusts and considerations around inherited wealth. Evidence will also go to the core of how strong those arguments might be, so it is important to take legal advice as early as possible.