Pensions and divorce

What are the options for dealing with pensions on divorce?
Key points

There are 3 options available for dealing with pensions on divorce

  • Offsetting the pension against other matrimonial assets
  • A pension attachment order (formerly known as earmarking)
  • A pension sharing order

There are slightly different rules for pension sharing orders in Scotland than there is in England and Wales

For many their pension is one of the most valuable assets they have. The value of any pension assets must be taken into account in any divorce settlement or on the dissolution of any civil partnership.

What are the options for dealing with pensions on divorce?

Once pension assets have been identified and valued, the solicitors representing in a divorce and the divorcing couple will have to agree what is to be done with them as part of the financial settlement.

What can be done with the pension assets on divorce

There are 3 options available:

  1. Offsetting the pension against other matrimonial assets
  2. A pension attachment order (formerly known as earmarking)
  3. A pension sharing order

We will look at the properties of each and the practical reasons why each might be suitable for a particular situation.

Offsetting

Offsetting is the simplest method as it offers a completely clean break between the ex-spouses/civil partner.

In this scenario one spouse retains the pension and the other is awarded or retains matrimonial assets.
Most commonly the pension is offset against the value of the marital home, these usually being the most valuable of all the matrimonial assets. Furthermore the matrimonial home is likely to be awarded to the spouse who is bringing up any dependent children.

Where this doesn't work is when the pension fund is quite large and in order to keep it intact the spouse without the children would need to give up all or nearly all of the remaining matrimonial assets. When this is the case solicitors may suggest the pension plan is divided between the two parties, see the following sections on attachment orders and pension sharing.

Attachment order (earmarking)

An attachment order is an instruction from the court which requires the trustees of a pension scheme to pay benefits directly to an ex-spouse/civil partner, rather than the member.

The order may be made against one or more of the following pension benefits:

  • The pension commencement lump sum (PCLS)
  • The member's pension
  • The spouse/civil partner's death-in-service lump sum

Attachment, which was introduced as 'earmarking' under the Pensions Act 1995, can be useful in that the spouse/civil partner can rely on an independent and trustworthy third party to make the payments, rather than an often reluctant ex-partner, however there are also several drawbacks which mean that it is usually the least often used option.

The main problems are:

  • The order only comes into effect when benefits are taken, as this is the member's decision it can be delayed to suit them (even if they are just being difficult).
  • Similarly the member can choose the format of benefits, so if the order applies to the PCLS, the member can choose not to take it (unless specifically directed otherwise in the order).
  • The order prevents a clean financial break, since the ex- spouse/civil partner must keep in touch, at least with the scheme trustees, in order to benefit.
  • Any pension benefits will be taxed as belonging to the member. This is particularly onerous if the member is a higher rate taxpayer and the ex-spouse/civil partner is not.
  • The order may lapse in the event of the member's death or on the remarriage of the ex-spouse/civil partner (this can be specifically dealt with by attaching the death in service benefit and using careful wording in the order to exclude cessation on remarriage but often it is not).
  • Earmarking orders are notoriously complicated to draft with many being unworkable.

Sharing

The concept of pension sharing, initially called splitting, was first suggested by the Law Society and the Pensions Management Institute (PMI) following the judgement in Griffiths v Dawson (1993) which resulted in the requirement to take pension assets into account during a divorce.

Given that these bodies represented the two professions most likely to be practically involved in treating pension assets in divorce you might expect that the proposals would be welcomed. As it turned out the government of the day felt that earmarking was a better solution and it was not until December 2000 that sharing became an option.

A sharing order has the major advantage over attachment of allowing a clean break (remember this is a key objective of solicitors acting in a divorce case).

Under a sharing order the pension asset is divided into two, and one part is legally transferred to the ex-spouse. The receiving spouse now has complete control over their part of the pension and may take benefits as and when it suits them (within the pension legislative that applies at the time).

There are three ways in which a sharing order may be implemented:

  1. The ex-spouse may be offered membership of the pension scheme
  2. The ex-spouse may be offered a transfer to their own pension plan
  3. The trustees may choose to offer both options

Note - this decision lies with the trustees and applies at scheme level, other than option 3 individual scheme members are not allowed to choose which option they want.

In practice the trustees of unfunded pension arrangements will want to avoid having to pay monetary amounts out of the scheme and will only offer scheme membership, and trustees of funded arrangements probably want to avoid looking after benefits on behalf of unconnected third parties and will only offer an external transfer.

Since December 2000 sharing has commonly been considered the most favourable option after offsetting.

The most important thing to remember is that whatever option is chosen, a fair pension valuation is still key to getting a fair overall settlement.

Financial advisers are often brought into the divorce process once a pension sharing order has been agreed, primarily because solicitors are unlikely to be qualified to advise their clients on the most suitable plan to receive their newly-acquired pensions benefits. 

Further Information

More information can be found in

Notes

PTM029000: General principles: Divorce and pension benefits

The information provided is based on our current understanding of the relevant legislation and regulations and may be subject to alteration as a result of changes in legislation or practice. Also it may not reflect the options available under a specific product which may not be as wide as legislations and regulations allow.

All references to taxation are based on our understanding of current taxation law and practice and may be affected by future changes in legislation and the individual circumstances of the investor.

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