What happens to my pension if I separate or divorce?
Anyone going through a divorce or separation will know that it is a daunting prospect; it is a time of uncertainty and at the forefront of your mind will be arrangements for your children and meeting your immediate housing and income needs. The impact of your separation on your pension provision may not be an immediate concern to many, but if you get this wrong it can be a serious threat to your long term financial security.
When a couple gets divorced the starting point is the assumption that their assets should be divided between them equally, although there are factors which could justify departing from equality in favour of one party. Pensions that have been accrued during a marriage or civil partnership by either party are matrimonial assets and available for division between the spouses. Pensions accrued before marriage may still need to be taken into account if needs dictate. That said, dividing a pension will not be as straight forward as dividing other assets such as money in the bank, investments or property and a £1 of pension is not the same as a £1 of capital.
First, the pensions will need to be valued and within divorce proceedings the starting point is generally the Cash Equivalent Value (CEV), which will need to be requested from the pension company. It is important to be aware however that the CEV will not always reflect the true value of a defined benefit or final salary pension scheme. It is usually appropriate to consider instructing an actuary/pensions expert to report on how the pensions should be divided to ensure a fair outcome and/or one that will meet needs.
There are two main methods of sharing pension funds: –
Pension Sharing – The most common way to share pensions on divorce is by way of a pension sharing order. This order provides for a proportion of the party with the greater pension provision to be transferred to the other party and the share of the pension (remaining in the existing fund or invested elsewhere, depending on the scheme’s rules) will then be in their name with no further link to the paying party.
Pension Attachment/Earmarking – A pension attachment order provides for the receiving party to receive a defined percentage of the other party’s pension once it is in payment. In short, the pension payments will be divided between the parties to provide them both with an income on an ongoing basis. This holds risks for the receiving party as if the paying party dies the payments will stop and the rules of the attachment order may also state that if the receiving party remarries then the payments will end.
Sometimes the circumstances mean that it would be more beneficial to one or both parties for the party lacking in pension provision to receive a larger share of other assets in lieu of a share of pension assets. This is known as offsetting. For example, you may personally value the opportunity to stay in the family home as more important than receiving a share of your spouse’s pension. This is something that must be given very careful consideration as if you have no pension you need to know that you will be able to support yourself in retirement by relying on other assets, perhaps by downsizing and releasing the capital in the property. It is essential that you receive expert advice in this area.
On occasion a couple will separate but wish to avoid divorce proceedings, perhaps entering into a Deed of Separation to record the financial agreement between them. It is important to be aware that there can be no pension share or attachment if there are no divorce proceedings.
It is also important for cohabiting couples to be aware that should they separate they will have no right to a share of the other’s pensions, or indeed the other’s assets on separation. If you are living with a partner you may find it helpful to read our blog on living together.
Dealing with pensions on divorce is a complex area and it is important to consider taking legal and financial advice.
An excellent starting point for those wanting a better understanding of the options and what to expect are the new online resources launched by The Pension Advisory Service here: https://www.pensionsadvisoryservice.org.uk/news/tpas/divorce-and-pensions-things-to-think-about
This blog was originally written by Lauren Guy. For a consultation with a member of our specialist family law team please contact us.
I saved for a pension till 1996. We married in 2002. Can my wife make a claim. She does have a pension pot. only one payment to the fund was made after marriage
When a pension or a significant proportion of a pension was accrued prior to a marriage there is an argument that it is a non-matrimonial asset. That said, whether or not it can be ?ring-fenced? and protected from sharing will depend on whether the matrimonial assets are sufficient to meet the parties needs.
wife has police pension of 15 years.i will have fire service pension of 29 years 3 months in total at end. I retire in 2years 6months will her police pension be taken into account .
Thank you for your comment Stephen. Generally, all pensions accrued during the marriage will be taken into account when considering what, if any, order would be appropriate in respect of pensions. I recommend that you take specialist legal advice as to what may be appropriate in your particular circumstances.
My spouses pension spans a 30 year period . We were married for the last 15 years when , due change of career , her income spiked & 90% of her 500k pension pot accrued. What proportion of the 500k pot would be an equal share?
Thank you for your comment Steve. Generally, pensions that are accrued during the marriage are shared upon divorce. I recommend that you seek legal and actuarial advice in relation to your specific situation. Please do contact us if we can assist further.
I have been married for 4 years… prior to my marriage I worked for 32 years and accrued a ?600k pension. I sold my home and moved 60 miles away giving my hubby ?20k towards our house in his name. I was diagnosed with cancer of the Vulva 6 weeks prior to marriage and can now only work on min wage as I can no longer sit down.
My husband earns ?300/350k and insists I take ?5k settlement or he will take my pension from me and he wants 50k for holidays and paying for the house whilst I was ill.
He has a pension of 120k plus equity of ?80k.
I fled the martial home whilst he was away due to violence.
He is 52 … I am 55 …
He says if I don?t accept his one time offer I need to fight him he will drag it out for 3 to 4 years and if I die in that time he will get all my pension.
I live in a rented house now with no hope of getting another mortgage and a divorce bill of ?25k like his last divorce would cripple me.
Thank you for your comment. If your pension pre-dates the marriage it may be possible for that to be ring-fenced and protected from claims from your husband, especially as the marriage is not long. That said, it will depend on all of the circumstances of your case and I am unable to give tailored legal advice in this forum. I would encourage you to contact the office to book an initial appointment so that you can get the advice that you need.
Hi,
I accrued a pension of approx ?75k through military service.
After leaving the military, I met my wife & was married for 10 years & have two children.
Our current family assets less my military pension is ?70k. I?m happy to have a two thirds split in my wife?s favour (ensuring her needs are met).
Will my military pension which predates the relationship be considered a non-matrimonial asset?
Thank you for your comment, Robert. The treatment of your pension will depend on all of the circumstances of your situation. It may be considered non-matrimonial, but may only be ring fenced if there are sufficient assets of the marriage to meet the needs of both parties.
I have a final salary pension and a valuation of ?147000, the pension will be paid out in a lump sum, do you pay tax on payments taken this way due to a devorce?
Thanks for your message. Unfortunately, we are not able to provide tax advice.
Hello, If I have a stocks and shares ISA from before we and my wife got married or moved in together and I have not touched or added to it since. It has increase from ?100,000 to 1.5 million in the last 15 years. Our matrimonial assets accrued over the course of our twelve year marriage value at ?350,000. Would she be entitled to any of this? She has a good job and could look after herself.
Thank you for your comment. Whether you have a right to occupy depends upon whether the family home is jointly owned or owned in your husband?s sole name. If it is owned in your husband?s sole name then, providing you have registered homes rights, you have the right not to be evicted or excluded if you are in occupation of the property. However, if you move out then you have the right, with leave of the court, to enter into and occupy the property.
Thank you for your comment. I am afraid that we cannot comment upon specific circumstances within this blog. We would strongly advise that you obtain advice from a family solicitor who is a member of Resolution and please let us know if we can help on a formal basis.
I have an equal live with shared care order in place 2 week rotation for our two children. The Ex cheated on me twice to find out the eldest isnt mine afrer 7 years of raising her, then for the DNA test of the alleged father to come back negative. There is ?176000 available equity from the sale of two houses.?43000 equity was in a house the ex had before the marriage however I invested heavily into the property. The property increased in value after the renovation works I completed and paid for. Her house after sale made a profit of ?66000. The Ex doesnt have a job however has an earning capacity of ?30k+. I have a job and another child on the way though I am not with that person no more however I will have overnight access to the child in the future which is confirm. I would require a 3 bed house and her needs would only require a 2 bed house. I invested heavily into the second home if not all of it. Onto the point the ex has a pension of ?28k before the marriage started. I have a pension of 29k aswell. Just out of interest how would the Judge look at this regarding dividing assets and would her pension be brought into play. She is offering a 90/10% split of which definately have declined. She has an earning capacity though cant be bothered to get a job. She would only require a deposit of ?30000 for a 2 bed house with an earning capacity and potential of getting a mortgage of ?100000 when she gets a job, the same as me though I would require a deposit of ?50000 for a 3 bed house with a ?100000 mortgage. The FDR hearing is in a week and unfortunately I am representing myself. Just need some advise and what to expect. Please help!!
Thank you for your comment. I am afraid that we cannot comment upon specific circumstances within this blog. We would strongly advise that you obtain advice from a family solicitor who is a member of Resolution and please let us know if we can help on a formal basis.
*Follow on to the previous message she says she has acrued debts of ?60k legal fees and ?10 of credit cards after the seperation, my debts are 11k
Thanks