Pension sharing could apply to any divorce where proceedings commenced on or after 1 December 2000.
Pension sharing isn't compulsory. Like offsetting it offers a clean break solution. It's generally the preferred option for clients who have insufficient assets to offset their pension, or have other assets they want to keep. The main difference between earmarking and sharing is that there is a legal transfer of ownership under pension sharing.
In England & Wales all pension assets belonging to the couple are taken into account on divorce. In Scotland, only pension assets built up during the period of marriage/civil partnership are taken into account.
After the sharing order comes into effect, the receiving spouse/civil partner owns the pension in their own right and can manage it as they wish. The ex-spouse's/civil partner's 'share' of the pension is called a pension credit. The reduction in the member's pension as a result of the pension share is called a pension debit.
In England and Wales pension sharing can only take place by court order. In Scotland pension sharing can be activated by court order or settlements can be reached by negotiations between the opposing solicitors; this will be contained in a 'qualifying agreement' rather than a court order.
The amount of pension to be transferred should be expressed as a percentage of the cash equivalent transfer value (CETV) and not as a specific lump sum (except in Scotland). This causes some practical problems, as the CETV can change quite significantly during the time that the divorce is being finalised, particularly if the stock market is going through a volatile period. The actual amount of the pension credit will not be known until the court order is finalised.
Pension sharing doesn't apply to all pension schemes. The table below gives details of what pension scheme assets can and cannot be shared:
|Pension scheme||Can be shared?|
|Occupational pension schemes (including AVCs)||Yes|
|Personal pension schemes||
|Stakeholder pension schemes||Yes|
|Retirement annuity contracts||Yes|
|Statutory pension schemes||Yes|
|Employer financed retirement benefit schemes - unapproved schemes||Yes|
|Contracted-out benefits, State Second Pension (S2P) and State Earnings Related Pension (SERPS)||Yes|
|Pensions in payment from any of the above||Yes|
|Schemes in which the only benefits are equivalent pension benefits||No|
|Basic state pension||No|
|New state pension||No|
|Pensions the member is receiving as a spouse, civil partner or dependant||No|
|Pensions already subject to an earmarking or sharing order||
The trustees of the member's pension arrangement are responsible for implementing a pension sharing order, although in practice this duty will usually fall to the scheme administrator.
In order to implement a pension sharing order the administrator may require information from the trustees of the pension arrangement, the member and the ex-spouse/civil partner as well as the court.
Following implementation of the order the ex-spouse/civil partner will receive a pension credit which may be held within the existing pension arrangement or transferred to another pension arrangement. The member's pension receives a corresponding pension debit.
The trustees are obliged to carry out an up to date valuation as part of the implementation process. This is used when agreeing the percentage split.
The date on which this is carried out will be the Transfer Day, which will be the latest of the date of the decree absolute, 28 days after the date upon which the pension sharing order is made, and any date specified by the court on which the pension sharing order is to be effective.
A new valuation is then needed which often causes confusion because the CETV will almost certainly have changed since the initial valuation was carried out during the negotiation process. When the percentage share is calculated it will therefore be different from the amount that was expected and clients often perceive this to be a mistake.
The pension sharing order may be implemented on any day, chosen by the trustees, within the implementation period. This will be known as the Valuation Day. The implementation period runs for 4 months from the date of the pension sharing order or the date the trustees have all the information they need if later.
In certain circumstances the trustees of an occupational pension scheme can request that the implementation period be extended beyond 4 months, in order to allow them to deal with issues which affect the scheme as a whole.
The main examples of this are where a defined benefit scheme is in wind-up or where assets under a self-invested arrangement must be sold to effect the order and the trustees believe that market conditions are unsuitable to do this.
The reason for this is to ensure that none of the other scheme members are unfairly affected by the implementation of a pension share for one of their colleagues.
Trustees of unfunded arrangements are likely to offer scheme membership to their members' ex-spouse/civil partner. The ex-spouse/civil partner must be given fair value for the pension credit, however they do not have to be given the same benefit structure as other scheme members.
Trustees of funded occupational pension schemes are more likely to offer an external transfer. This may be paid to any approved pension arrangement, including a personal or stakeholder pension or another employer's scheme.
Any advice regarding the most suitable receiving vehicle must of course be given by a qualified financial adviser.
The pension credit from some pension arrangements must be treated in a specific way.
If the transferring plan is a pension in payment, annuity or scheme pension, it will be unwound and recalculated with the pension credit being split out as a cash equivalent value. This credit will be treated as uncrystallised and can be paid to another registered pension scheme. There is no requirement to purchase an annuity. If it is in drawdown, the split will just be applied to the drawdown fund.
The pension credit above is called a disqualifying pension credit because it will not be possible to pay out tax-free cash when the ex-spouse/civil partner chooses to retire since it has already been paid to the member.
Yes, tax-free cash can be taken from a pension credit. Tax-free cash isn't available if the benefits that the pension credit came from were already in payment. This is called a disqualifying pension credit as it doesn't qualify for tax-free cash.
Pension credit benefits can be taken as provided for under the rules of the scheme that they are part of or transferred to. There are no restrictions. But, see answer above for disqualifying pension credits.
Pension sharing orders effective on or after 6 April 2006 count towards the ex-spouse's/civil partner's lifetime allowance only. If the order affected pension benefits that were already in payment, the ex-spouse/civil partner can apply for an increase to their own lifetime allowance. They can do this as the pension benefits will have been tested against the lifetime allowance of the member when the benefits were taken.
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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.
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