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When dealing with the division of matrimonial assets, pensions are often the most difficult class of asset to deal with.
When dealing with a pension, the common approach taken to establish a value for this asset is to obtain the Cash Equivalent Transfer Value (“CETV”) for the pension. If the CETV is being requested in connection with a Divorce or a Dissolution of a Civil Partnership, the Pension Companies are obligated to provide you with this information free of charge.
However, the CETV will not necessarily establish the correct value for the pension as there are a number of factors (for example the person with the pension being able to retire earlier than the traditional age of 65), which can mean the pension is in fact more valuable than its face value initially shows.
Furthermore, although the CETV is used to identify a given value of a pension at the time the marital finances are being divided, it is important to note that pensions are, in essence, a future income source and it will therefore not be possible to release the full amount stated in the CETV as a capital sum.
Due to the complex nature of pensions, coupled with the fact solicitors are unable to offer advice to clients on financial investment matters, whenever a case involves pensions of a sizeable amount, it is always advisable for to ensure an Independent Financial Advisor is always consulted with a view to a report being prepared to establish: –
Also, when considering how pension assets should be divided following the breakdown of a relationship, it is also important not to overlook the State Pension. A CETV for each party’s state pension can be easily obtained and it is possible to transfer certain benefits accrued under the pensions (such as National Insurance contributions) between spouses.
There are three ways of dealing with pensions after the breakdown of a relationship and these are as follows: –
Pension Earmarking / Pension Attachment Orders
In summary, an order made under this provision will ensure that, on retirement or death of the person with the pension fund, the payments under this pension will be split between that person and their ex-spouse.
Whist this approach is still appropriate in some circumstances it is generally unwelcome due to the fact that it does not achieve a clean break between the parties. If the pension is in payment and the person with the pension fund then dies, or the ex-spouse remarries, then the payments under the pension to the ex-spouse will stop.
Pension Sharing Orders
Under the Welfare Reform & Pensions Act 1999 has provided the Court with the power to split pension rights between married couples when they either Divorce. This power also applies if the parties are seeking to Dissolve their Civil Partnership.
The purpose of this type of order is to ensure a clean break is achieved between the parties. This is done by a proportion of the pension fund in question being transferred to the ex-spouse so as to enable them to set up a pension fund in their own right.
This option therefore has the advantage of each party having their own individual pension fund that will not be effected by the death or the remarriage of the other.
Due to this type of order being able to equalise the parties income positions at their respective retirement ages and also achieve a clean break between them, this is now the order that is almost always made by the Court when deciding how pensions should be divided.
Under this option, all of the marital assets are calculated along with the parties respective pension entitlement. If it is the case that the person with the benefit of the pension, for whatever reason, wishes to retain this in its entirety, discussions can take place regarding the pension forming part of that person’s overall share of the marital assets with the ex-spouse being compensated in some other way (for example being provided with additional capital or some other asset).
This option only tends to be adopted where a negotiated settlement is reached between the parties as, if an agreement cannot be reached and the Court is asked to make a decision on this issue, it is more than likely a Pension Sharing Order will be made to deal with matters.
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