Monthly Archives

March 2021

a couple arguing over a piggybank

Spouse pension rights

By | Divorce and Separation

In a divorce, pension funds can often be the biggest asset after the family home, however, they are often overlooked. You will be entitled to part of your ex-partner’s pension, and vice versa so these can be split appropriately during the divorce procedures.

You may have accumulated a number of different pension investments during your working life, from personal pensions, workplace pensions and NEST pensions to name just a few. Your ex-partner may have a right to some or all of these schemes and this can raise feelings of contention.

Why does a spouse have a right to my pension?

When you have built up your own pension funds over the years, it can be difficult to accept splitting it in the event of a divorce – particularly if your ex-partner has been unable to build up a comparable pension pot. This is quite often the case, if a woman has, for example, had to take career breaks to raise a family.

swag bag labelled 'pension', with a measuring tape around it

Your ex-partner may have a stake in your pension funds, or you may have a stake in theirs. This is because pensions built up during the marriage are considered to be matrimonial assets and as such, should be available to be split. As a starting point, assets may be split on a 50:50 basis, however, this will probably alter based on the individual factors in each case, which may include:

  • Whether your partner has their own pension fund which needs adding to the pot before equalising
  • Whether the entirety of the pension was built up during the marriage (including prior cohabitation) or whether there is any pre-marriage or post-separation accrual
  • Whether the equalisation of the pensions will meet the parties’ needs
  • The age of the parties, including whether they are of a similar age and how far away they are from retirement.

However, there are many other factors that will be relevant and that may significantly affect how pensions are dealt with.

How are pensions split?

Pensions are divided via a court order, and whether the courts agree to split the pension will usually depend on the pension provisions of each party. If there’s a significant imbalance in pension provisions between the two of you, then the courts are more likely to try and balance this out by sharing one spouse’s pension with the spouse with little to no pension savings.

There are four common ways of splitting pensions; a pension sharing order, pension offsetting, pension attachment (or ‘earmarking’) or via an individual agreement.

alarm clock, with stacks of money

With a pension sharing order, one spouse is given a percentage of any one or more of the ex-spouse’s pension funds by court order. The sum is either transferred into a separate pension scheme or by joining the ex-spouse’s pension scheme and this percentage of the total fund is allocated to the receiving spouse. Either option will be dependent on the rules of the pension scheme.

Pension offsetting is when the value of any pensions is offset against other assets. For example, you might agree to keep the pension fund and your ex-partner might agree to keep the family home. It’s really important to have an accurate pension valuation in this instance to ensure that the divide is equal and fair. Pension offsetting does not necessarily require a court order.

Pension attachment or ‘earmarking’ is when some of your pension benefits at retirement are paid to the ex-partner. This can be done in either a lump sum or as part of the pension income – or both. This only comes into play once the pension holder has started taking their pension. In this instance, you would effectively be deferring the split of the asset until you reach retirement age. As with pension sharing, this arrangement will require a court order.

Lastly, you could come to an individual agreement between the two of you. You might decide to forgo any claims on pension assets in favour of a more balanced settlement of other divorce terms. One party might get better child access arrangements, or child maintenance if they agree not to claim against the other party’s pension assets. You can ask the court to approve an individual agreement and turn it into a court order to provide more protection, just in case a dispute arises at a later date.

Remember – seek legal advice when opting for any of these options. As with most divorce-related issues, it can be both a complex and emotionally charged area to navigate, and the costs of making the wrong decision or not having all the relevant information can be substantial.

How long after a divorce can you claim on a spouse’s pension?

So long as you haven’t achieved a legally-binding financial settlement, there’s no time limit after a divorce for making a claim on an ex-spouse’s finances. The divorce itself only means that you are no longer married – it does not always settle your financial affairs.

If you are looking to protect your pension against this happening, then it is highly advisable to seek a formal financial agreement whilst you go through the divorce process. Even if it all seems amicable now, this can change in the future. A legally-binding divorce financial order will separate your finances from your ex-partner for good, leaving you to both continue with your independent lives.

How to find out the value of your pensions

As part of the financial disclosure required in divorce negotiations, you will need to find out the up-to-date ‘cash equivalent transfer value’ of all pension investments you have. You can obtain these valuations from the pension scheme administrators, although there is sometimes a fee for this service. For work-based schemes, you may need to go through your employer’s HR or payroll department for this information.

Your divorce solicitor will be able to help you through the legal process, the negotiations with the other party and guide you on what you can and can’t claim for or how to respond to claims against your pension. They will also agree and draw up the final divorce agreement, as well as preparing the documents for final court approval to legally dissolve the relationship.

 

The financial side of a divorce can be really difficult and emotionally charged. Whether you are trying to protect your pension funds, or ensure that you are not left short – at Bromfield Legal we will always try and achieve the fairest outcome for you, doing what we can to make the process smooth and straightforward. For more information, or to arrange an initial discussion on how we can help you, please contact us.