In most families, the two largest assets are the family home and a pension fund. Disputes over sharing a pension can sometimes be very acrimonious between divorcing partners or when a civil partnership is dissolved.
It is crucial to take expert legal advice to protect your interest in a pension fund – especially as the pension landscape is changing.
Splitting a pension
In a financial application, the court can make a decision about how a pension is divided up between a couple. If one party has, for example, given up their career to take on a homemaking or caring role in a family, they may not have a substantial pension pot themselves – and a court may feel they should be compensated as a result.
Pension rights can be lost if couples divorce. If one party has relied on the belief that in later years they will be entitled to their spouse’s pension – including if their spouse dies – then divorce or ending a civil partnership without sufficient pension provision for the future can potentially lead to financial hardship.
This can be especially relevant for couples who live together without marrying for long periods – and if one partner is still legally married, it is highly likely that if they lose their partner through death, the pension will either die with them or go their next of kin or named next of kin, as the law states a surviving partner must have been legally able to marry at the time of their partner’s death in order to inherit their pension.
Whether couples who are not legally married separate or not, it is vital to seek legal advice about what would happen if the partner with the more substantial pension fund died, especially if no will exists.
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Pensions and divorce - Further information
Pensions can be dealt with in a number of ways following a divorce, depending upon the particular circumstances of your case.
Pension sharing – this is where one spouse receives a percentage share of their ex-partners pension/s. This is either transferred into a separate pension scheme in their name (known as an external transfer) or into a separate pot within their former partner’s existing scheme (known as an internal transfer).
Pension offsetting – this is where the value of a pension is offset against other assets. For example, one spouse may receive a greater share of the family home or savings to compensate for the lack of pension provision.
Pension attachment (formerly ‘earmarking’) – pension earmarking used to be available but has been now replaced by pension attachment orders. A Pension attachment order redirects part or all of the member’s pension benefits to the ex-spouse or civil partner when it comes into payment. Previous pension earmarking orders will still apply at the member’s retirement. This doesn’t provide a clean break, as an on-going link with your ex-spouse or civil partner will remain.
Pension sharing is a formal agreement to divide your pension assets at the time of divorce. The courts work out exact percentages and the receiving party can become a member of the pension scheme or transfer the value to a new pension provider. The value of the pension is offset against other assets.
The Basic State Pension cannot be shared but the Additional State Pension can.
In the vast majority of cases, UK pension providers will not implement orders made in different jurisdictions unless a ‘mirror’ Order is obtained in the UK. This is usually a straightforward application to the court and we can help with this.
Contact our family lawyers today
Pensions in divorce can be a highly complex area for couples to reach agreement on, however, so taking legal advice is crucial. Our specialist family lawyers offer expert and detailed legal advice to individuals and couples on pension rights in divorce.
For bespoke legal advice in this area, call our expert family lawyers today on 01256 630080.
