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Pensions on Divorce and the New Legislation : The importance of Expert Advice
- AuthorSali Jackson-Thomas
The percentage of marriages ending in divorce is approximately 42%. More people than ever are divorcing later in life. Frequently a party's pension can be the biggest asset in a marriage with available cash and property values decreasing.
The usual way of dealing with pensions is via a pension sharing order. This creates two pensions from the existing one and the receiving spouse's pension is then totally independent from that of the giver.
A second option is creating an attachment order. This enables the court to order the managers of the pension scheme to pay a proportion of the pension to the pension - holder's spouse. In this situation, the pension-holder remains in control of their pension and cannot be compelled to retire at a certain age. Additionally if the pension-holder dies, the pension benefit is lost. If the non-member remarries, then payments, which are akin to maintenance, will cease. Clearly an attachment order is an unattractive option for the non-pension holding spouse apart from in exceptional circumstances.
Offsetting, which is the third option, is where the non pension holding spouse takes a greater share of the tangible non pension assets to compensate for the loss of a share of their spouse's pension. A very important point to consider however with offsetting, is that we are not comparing like-for-like so how do we value the pension asset to formulate a fair outcome on an offset?
In a recent case (WS v WS) the wife had a defined benefit final salary pension (this has been referred to as 'a secure, inflation-proofed, sleep at night pension') There was no unified approach as to how to value it and the judge was presented with a wide spectrum of options. He concluded " there is no obviously right figure or correct calculation.'
Furthermore the new 'pension freedom' whereby people with personal pensions and members of occupational defined contribution schemes that can access the whole of their pension pot, although tax is payable on all but the tax free lump sum, may impact on the value of the pension
I strongly take the view that the involvement of pension experts is crucial in many divorce cases.
Sali Jackson-Thomas is a family law Solicitor with some 25 years experience providing family legal advice. Sali is an expert in cases involving family businesses, pensions, overseas trusts, and assets outside the jurisdiction. Sali and her team have been actively involved in developing new approaches to partnership and living together agreements for many years.
Sali can be contacted directly on 01792 525 413 or via email firstname.lastname@example.org