The recent decision of HHJ Hess in BS v HC [2026] EWFC 20 (B) delves deep into the treatment of pensions on divorce, particularly where substantial pension rights accrued before the marriage. The case also provides a useful reminder of the court’s restrained approach to “add‑back” arguments.
Background
The parties married in 2009 and divorced in 2024. There were no children of the marriage. The husband had four adult children from a previous relationship.
The non‑pension assets were broadly agreed and consisted mainly of jointly owned properties and other capital assets. However, the real issue in the litigation concerned the husband’s pensions, which were valued at in excess of £3million, compared with the wife’s relatively modest pension provision of around £35,000.
The principal dispute was therefore whether — and to what extent — the husband’s pension should be treated as matrimonial property subject to the sharing principle.
The add-back allegations
Before dealing with pensions, the court dealt with allegations by the wife that the husband had dissipated assets by making payments to his adult children totalling approximately £102,330. The wife argued that these sums should be “added back” to the husband’s side of the balance sheet to prevent her effectively funding half the gifts.
The husband resisted this argument, relying on established authorities such as Norris v Norris and Vaughan v Vaughan, which confirm that add‑back findings should be exceptional and confined to cases of wanton or reckless dissipation.
HHJ Hess declined to make any add‑back order. He considered that both parties had engaged in significant spending and that the wife’s own expenditure effectively “neutralised” the husband’s conduct.
The judgment therefore reinforces the judicial reluctance to entertain satellite litigation over conduct unless there is truly egregious financial wrongdoing.
Equal sharing of non-pension assets
In relation to non‑pension capital, the court applied ordinary sharing principles derived from White v White and Miller/McFarlane.
The assets were divided broadly equally through the transfer of one property to each party together with a balancing payment from the husband to the wife of approximately £724,654.
This aspect of the decision was comparatively straightforward. The complexity arose in relation to the pensions.
The central pension question
The husband argued that a substantial proportion of his pension entitlement was non‑matrimonial because it had accrued before the marriage. The wife argued that the pension had become “matrimonialised” during the course of the long relationship and should therefore largely be shared equally.
This issue sits at the centre of a developing line of authority concerning the treatment of non‑matrimonial property after the Supreme Court’s guidance in Standish v Standish. Matrimonialisation, as confirmed in Standish v Standish, is where a party has demonstrated an intention to use non-matrimonial property for the benefit of the family, by translating it into actual use and enjoyment, the parties have elected to treat it as matrimonial property (as quoted from Peter Duckworth, Matrimonial Property and Finance (2025) at B3[20]).
Importantly, the judgment recognises that pension growth during a marriage is not always attributable to marital endeavour and does not translate into actual use and enjoyment. The court observed that pension increases may arise from:
- historic pre‑marital service;
- investment growth;
- macroeconomic conditions;
- actuarial methodology; and
- scheme funding decisions.
Accordingly, the mere fact that a pension increases in value during a marriage, and the fact that the other party will never have use or enjoyment of the pensions whilst it is not in drawdown, does not automatically convert the entirety of that increase into matrimonial property.
Matrimonialisation and fairness
The parties relied upon competing actuarial methodologies, including service‑based and cash equivalent value analyses, each producing markedly different outcomes. HHJ Hess declined to adopt any one model mechanically. Instead, he reiterated that fairness in financial remedies cases involves a “broad evaluative” exercise rather than precise mathematical computation.
Ultimately, the judge held that:
- 55% of the husband’s pension should be treated as matrimonial property; and
- 45% should remain non‑matrimonial
That conclusion is particularly notable given the length of the marriage. The judgment demonstrates that even in longer marriages the court may still preserve a meaningful non‑matrimonial element within pension assets.
The reasoning also reflects an important conceptual distinction between pensions and other forms of wealth. Unlike cash or real property, pensions are generally not “mingled” during the marriage. They usually remain held in one party’s sole name and are inaccessible until retirement. HHJ Hess considered this relevant when rejecting the suggestion that the entire pension had become matrimonialised through the parties’ conduct alone.
Why the decision matters
The case is likely to become an important authority in pension-sharing disputes for several reasons.
First, it confirms that pre‑marital pension accrual can retain a non‑matrimonial character even after a lengthy marriage.
Secondly, it emphasises that pension disputes should not be reduced to purely actuarial exercises. Expert evidence remains critical, but the ultimate question is fairness rather than arithmetic precision.
Thirdly, the judgment continues the courts’ cautious approach to add‑back arguments and discourages disproportionate conduct litigation.
Finally, the decision reflects the growing judicial sophistication surrounding pensions, which remain one of the most complex and frequently misunderstood assets in financial remedy proceedings.
In an era where pensions are increasingly the largest asset in many marriages, this judgment provides valuable guidance on how courts may approach the difficult boundary between matrimonial and non‑matrimonial pension property in future cases.
At Rayden Solicitors we have a team of family law specialists with expertise in giving guidance on pre-acquired pensions and non-marital property. If you would like to speak to us about a financial issue please get in touch.
