Family Department - Pensions

On divorce the court has the power to order your spouse to share his pension with you. Previously, pensions could be "earmarked" for the other spouse on divorce.

Now, pension sharing orders can be made, transferring a proportion of your spouse's pension on divorce, into your sole name. This will then be treated as your pension, to which you will have rights and you can nominate it to anyone you wish.

When asking the Court to consider how best to resolve financial disputes within divorce proceedings, it will look at the whole picture, taking into account all assets of the marriage, including any pension provisions.

The Court is specifically required to have regard to:

(a) any benefits under a pension scheme which the pension holder has or is likely to have; and
(b) any benefits under a pension scheme which, you are likely to lose the chance of acquiring because you seek a divorce or annulment.

The Court may order that once the pension becomes payable, the trustees or managers of the scheme will be required to pay part of one pension and/or lump sum available from the scheme to the other spouse. The Court can also make an order that if the spouse with pension rights dies, the other spouse should receive all or part of the death benefits. These are known as "earmarking" or pensions" orders. Such orders are made entirely at the Court's discretion, and have now been replaced with Pension Sharing Orders.

Pension Orders can only be made in respect of petitions for divorce, judicial separation or nullity issued after 31st July, 1998 and cannot be made in favour of children in any event.

Please note that the Court will often look at awarding the spouse without rights a bigger share of other family assets (e.g. the home) in lieu of a pensions order. This is known as "offsetting" and means there are less financial ties between the parties, allowing a clean break to be acheived.

This is a very complex area of the law which is still developing and under constant review. You should therefore seek professional advice from a specialist family law and this is where Sylvester Mackett can assist you. Talk to a Member of our family law team - send them a letter, fax, e-mail or telephone to make an appointment.