Most people realise that marital assets such as cash savings or property are split between partners in the event of a divorce or dissolution of a civil partnership. What tends to be forgotten is pension assets.
This guide covers:
Spouses and civil partners are indeed sometimes entitled to a share of pension assets, but just how they’re split is complex and dependent on the circumstances of each individual case.
As well as seeking legal advice from a solicitor who specialises in divorce (who in turn may seek guidance from a qualified pension adviser or actuary), each party should also get financial advice — even if you believe you have a clear understanding of the issues or think your affairs are simple.
Pension funds can only be divided by a court order as they were set up with only one beneficiary in mind: the person saving for a pension.
The courts may be more likely to agree to a pension split if there is a significant imbalance between the pension savings of the two parties. This could be because one of the couple has been the breadwinner, while the other has worked part-time or not at all (perhaps because they’ve taken care of the family and home).
How much each party could get is dependent on individual circumstances, and if both parties already have similar pension provisions in their own names then the courts may rule that pension assets don’t need to be split at all.
Much depends on the circumstances of the individual case and what the two parties agree to, but pensions are often considered matrimonial assets and potentially split in a divorce.
Sharing a pension on divorce is a complex area, especially if the divorce is acrimonious.
Each party should take professional advice from a divorce solicitor on top of financial advice, especially when there’s a pension involved.
In some cases, pensions may go untouched during a divorce in favour of one party receiving a greater share of other matrimonial assets, such as the family home, in the final settlement. Whether or not your pension is split during a divorce will depend on your circumstances and the agreement reached between the two parties.
Due to the devolution of certain areas of law in the UK, the rules are slightly different depending on where the spouses live.
In England and Wales and Northern Ireland, all assets built up by each individual — including pension assets — up to the date of the separation are taken into account when calculating total matrimonial assets. In Scotland, however, only assets built up during the marriage are used.
Some elements of the State Pension may also be split in a divorce. Although the basic State Pension can’t be divided in a divorce, any additional State Pension benefits, such as SERPS or the second State Pension (S2P) can be split on divorce or dissolution of a civil partnership through a pension sharing order.
An ex-spouse or civil partner can also use their former partner’s National Insurance contributions to increase their State Pension for the years they were married. Both of these rights are lost when they remarry or enter a new civil partnership.
The New State Pension (brought in for men born on or after 6 April, 1951 and women born on or after 6 April, 1953) cannot be shared between former spouses and civil partners. This is because it is paid at a flat rate to all based on qualifying years of National Insurance contributions.
Defined benefit schemes can complicate the sharing of pensions in a divorce and will require additional analysis and expertise. This is because the member’s pension entitlement is a promise from their employer and is not reliant on investment returns or annuity rates.
It may also be linked to their final salary, which is hard to determine at the time of the divorce, especially if the couple is young.
This specialised analysis work adds an additional expense to the overall cost, especially if the member is enrolled in more than one defined benefit scheme. The member must also consider the financial ramifications if they look to transfer out of the defined benefit scheme to split the pension entitlement with their spouse. Doing so might be giving up a guaranteed retirement income.
Some final salary schemes, especially public sector schemes, may allow the non-pension holder to become a pension sharing member in the event of a divorce. Speak to your scheme or ask a pensions expert about this option.
Any shortcuts or failing to seek professional financial advice with these types of schemes will almost certainly be costly in the long term. Importantly, you should apply to the relevant providers and seek some pension advice from a financial adviser as soon as possible if a final salary pension split is on the table, because it can be a long and complex process.
The following arrangements can generally be shared:
The following types of pension can’t typically be shared in a divorce:
Under a pension sharing order, all pension benefits are calculated as a ‘capital value’. For money purchase arrangements this is simply the transfer value and for defined benefits schemes the cash equivalent transfer value (CETV) is used.
Until the Pension Act 1995, the only method of splitting pension assets in a divorce was ‘offsetting‘. Effectively, offsetting sees non-pension assets traded off to compensate for the loss in pension assets by the one spouse.
This is the only form of pension sharing on a divorce that doesn’t need a court order, because the assets held in the pension fund(s) aren’t actually split in any way — they’re simply offset.
The method introduced by the Pension Act 1995 was known as ‘earmarking’, which involves a spouse retaining the right to a share of the pension once the member retired. Pension earmarking has since been renamed as a pension attachment order, although both terms are widely used.
While pension attachment orders have their benefits — namely providing a pension income in the former spouse’s name — it also has its disadvantages.
Arguably the main disadvantage with a pension attachment order is that the ex-spouse must wait for their former spouse to start drawing their pension to receive their share, the timing of which may not suit the ex-spouse.
The courts have no power to dictate when the spouse with the pension begins drawing an income from it, what age they should work to or even if they should continue making contributions to the scheme earmarked by the court.
The Welfare Reform and Pensions Act 1999 introduced a third option: a ‘clean break’ option known as pension sharing. This allowed a complete split of the pension benefits because benefits were transferred into an entirely separate pension arrangement in the ex-spouse’s name.
Offsetting is the oldest method of sharing a pension in a divorce. Marital assets are traded to offset the loss in pension benefits by the other spouse. So if there is a pension fund worth £200,000 and a property also worth £200,000, the spouse with the pension would keep it intact but sign over the property to the spouse without any pension provisions to make up for the loss.
Pension offsetting is useful if the pension is inaccessible, such as when it’s based offshore. However, there are a number of problems with this approach. It’s difficult to make assumptions of a future benefit from a pension fund and compare those with assets such as property and cash transferred at the date of the divorce.
For the pension holder, the issue then arises that although they may have retained valuable pension rights during the split, they won’t have access to property / savings that were used to offset their pension pot. They could be left with a pension pot that they may not be able to access until retirement and not much in the way of other assets.
Offsetting is not as simple as taking the value of the pension fund at the date of separation and compensating the spouse with the equivalent in cash and property.
Head of Financial Planning at Drewberry
Women live longer than men, for instance, so would likely be receiving a pension for longer than a former husband. This must be taken into account when determining the assets the spouse without the pension gets to compensate for the loss in pension rights.
Offsetting still could see one partner having little or no pension provisions and limited independent earning power to rectify this in time for retirement, given that the additional share of assets they receive may not easily be liquidated and put into a pension fund. This might be the matrimonial home that serves as the residence for any dependent children.
The issues with pension offsetting were a notable driver of the legislation in the Pension Act 1995 on the splitting of pensions in divorce.
Under a pension attachment order, benefits are retained by the member of the pension arrangement. So if one partner’s pension was worth £10,000 per year and the other partner was entitled to 50% of this, they’d receive £5,000 of pension income.
The earmarking order can be applied separately to one or more the following:
This option carries the following associated risks:
People delay taking their pension for many reasons, such as not being able to afford to retire, which may be related to the splitting of assets in the divorce if it occurred later in life, or simply not wanting to yet.
The member may not want to start drawing on their pension because, while they’re still working, taking additional income would push them into a higher tax band. Also, investments may have underperformed, and the member could be waiting for them to recover.
In addition, the member may choose to defer taking benefits because the marriage breakup was particularly unpleasant or they feel that the amount paid to their ex-spouse was excessive.
If the member has accumulated other assets after the divorce or retained them in the divorce settlement, then they may be able to comfortably retire without the pension income, leaving the ex-spouse waiting for their share.
Although earmarking address some of the issues regarding pension sharing in divorce present in offsetting — namely it doesn’t leave one spouse without pension provisions and the other with few assets other than a pension — the approach is clearly not without issues of its own.
Pension attachment orders make no provisions for the circumstances of both parties changing over time.
Pension attachment orders cease on remarriage, but more than 1 in 5 of the men and women who entered into an opposite sex marriages in England and Wales in 2013 had previously been divorced.
It may also not be practical or desirable for the former spouses to remain in contact with each other, making a ‘clean break’ approach is the most preferable and practical solution in most cases. A clean break may be the only sensible solution if, for example, one party wishes to start a new life abroad.
A pension sharing order offers more of a clean break solution than is offered by a pension attachment order, and also addresses many of the other issues related to the previously discussed methods of splitting a pension after a divorce.
In these circumstances, the court will issue a pension sharing order which sets out how much of your pension scheme(s) your ex-partner is entitled to receive. This figure is a proportion of the transfer value of the scheme or schemes to be divided. The court may also rule on the proportion of the final benefit from the scheme your partner is entitled to.
The pension awarded to the former partner will be in the form of a pension credit, which can then be transferred into an existing pension scheme or a new one set up to receive the transfer.
In most cases, the only option on the table will be what is known as an external transfer, with the transfer value payable to a scheme nominated by the ex-spouse outside of the member’s own plan.
The other option is less common and applies to some defined benefit schemes. Known as shadow membership, it involves the ex-spouse receiving a ‘pension credit’ based on the member’s entitlement.
So if an ex-wife was entitled to a pension of £10,000 per year and the court orders 50% of this to be transferred to her former husband, then the ex-wife’s benefit from the scheme is reduced from £10,000 to £5,000 and the ex-husband receives a ‘credit’ in his name from the scheme of £5,000 per year.
The ‘job for life’ mentality has long passed and people now change jobs an average of 9 times during their career. This means that a couple could have accumulated significant wealth over a number of pension arrangements, an issue that will become more prominent over the next few years as auto-enrolment includes most people in some form of pension scheme.
Although a pension sharing order is fairly simple if there’s only one personal pension arrangement, most couples will have a number of arrangements between them, some of which may be defined benefit schemes. Having numerous pension arrangements creates complexity to the decision process because:
It’s easy to value most matrimonial assets other during a divorce. The family home, cash savings and cars are all simple to put a price on. However, pensions are harder to value. Although a pension provider can offer you the transfer value of an existing arrangement, this value may not be representative of the perceived value of the benefits accrued by both parties.
To return to the earlier example in the offsetting section, is a £200,000 property worth the same as a £200,000 pension arrangement? This is dependent on a number of factors.
How easily can the house be sold at the valuation provided, and what are the selling costs? Is it possible to realise the value in the house straight away? Perhaps one half of the couple will continue living there with any children and can’t sell it immediately; will house prices have fallen in the future when they are in a position to sell?
When valuing a pension during a divorce, you need to take into account each party’s age. Are they over 55 and thus able to access the pension arrangement with a 25% tax-free lump sum under the new pension freedoms, or are they younger and is pension planning therefore less important?
What will the income tax liability be on the income element of the pension, and how much can be taken as a cash-free lump sum? Is the CETV for a defined benefit pension a realistic value of the benefit being given up?
What if one half of the couple wants cash to hand? Funds held in a pension arrangement can’t be easily liquidated for non-pension purposes, such as if one of the former spouses wants to put down a deposit for a new house.
All these questions make it clear why valuing a pension is a difficult business and requires the input of experts. They will be able to take all of these factors into account when valuing your pension in a divorce. The end benefit is often a higher consideration than the value of the fund at the time of the divorce.
If you are currently in the process of getting divorced and would like to discuss your specific situation with one of our specialist pension advisers then please email us at email@example.com or call us on 0208 432 7333.
Alternatively, if you are a solicitor looking for pension analysis on behalf of your client we are able to assist.
The associated fees payable to cover the cost of the analysis work and implementing the pension sharing order are:
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