Ask the Experts

Pensions

Answered by: Kate Covell, Lawyer
Q.	I believe that there is a strong presumption of a 50:50 split being applied to a couple's pension 'pool'. I have read white v white and Charman v charman. They seem to support my assertion. My solicitor is strenuous in her arguement for 50% of the pot being rightfully mine. I am currently in mediation with my former husband. The mediator has said that there is nothing in English law that says that 50% split is certain. My husband jumped at this comment! We separated in October 2003 and the Decree Nisi was issued October 2004! My husband asserts that (1) some of his police pension - he is a chief superintendant - was earned in the 2 years before we were married. (2) the pension should only be valued at the 'pre 25 year's service'. It doubled after this!! (3) His need is greater so I should get less. We were married in 1981- 22 years. Have 2 daughters; 1 at Uni and the other completing A levels this summer. I would really appreciate information as to whether the courts would be likely to seek to split the pensions on a 50;50 basis. We managed to split the house and endowment in that way. I receive no maintanance nor had any capital amount that could be seen to offset the pension. Many thanks.
A.	I take the view that the pension should be split 50/50. The marriage is a long one. You will be seen as the homemaker and the pension would have been shared by you equally had you remained married to him. Go back to your Solicitor and follow his or her advice to push for the 50/50 split. If however he comes back with a slighly lower offer then do consider that since pursuing this through the Courts may well cost you more than the difference in the long run.
Answered by: Kate Covell, Lawyer
Q.	I'm still working and earning a final salary related pension. I have had a 33% pension share order implemented by the administrators. There was a significant delay in implementing the order (ie setting the Valuation Day). Should the administrators have applied the 33% to benefits earned (by virtue of the additional service) in the period between the transfer day and valuation day?
A.	You will need to read the rules applicable to the pension to find out the answer to this. It is usual that the amount to be shared is the amount set out on the valuation date.
Answered by: Kate Covell, Lawyer
Q.	My husband's ex-wife left him 16 years ago for someone else. She divorced him 12 years ago. They remortgaged the house and she took half the cash value. He had a very large mortage as a result. He married my 8 years ago and sold his house which just paid off the mortgage. He is now contemplating early retirement. She has written a letter to him mentioning the fact that there was no divorce settlement. However she did not want one at the time. Can she now claim something from his pension? We need to know this so that we know how much we will have to live on?
A.	I'm afraid, if there was no order from the Court at the time of the divorce or at any time afterwards she is entitled to make an application for full ancillary relief at any time. It is important in all divorce cases for financial issues to be dealt with and for an Order to be obtained from the Court granting a clean break. Your husband needs to seek independent legal advice as quickly as possible to make an application to the Court for a Clean Break Order thereby dismissing all of his previous wife's claims against him (and vice versa).
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	i was in the army for 22yrs. 18 of that i was married for. i have now been out the army for 6yrs. i split up from my wife in 1997, and was legaly seperated i now live with my new partner of 4yrs and have 3 children. is my ex wife entiled to a share of my pension. i was married in 1981 seperated in 1997 left the army in 2001.
A.	Yes, she probably is entitled to a proportion of your pension for the time you were married to her. This is something you should get advice about.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I was married for 18months, now past nisi and trying to agree finances. Neither of us paid any pension contributions during the period we were together. I have a large (150K) pension that is locked in a company scheme. It was locked 10 years before we met. She is now claiming 50% of my pension. Do I have any defence? There are no significant other assets from the marriage. I put in 60K which we lost over 18 months due to bad business investment and her excessive spending. She brought nothing to the marriage. I took on joint debt when she left (20K) she left with 5-10K assets. I now believe she is co-habiting and had an affair with this person before the split, but cannot prove this. Nisi was granted on my unreasonable behaviour (untrue but someone has to be blamed and I couldn't confirm her affair). Any advice welcomed.
A.	She has no chance whatsoever of getting any of your pension as the rights were accrued before you met and then married. The court in my view would not make a pension order in this case.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have filed the divorce petition to my husband. However, my new partner has asked me to marry him and I am wondering what ffect, financially, this may have on organising a financial settlement to my divorce. I have an 8 year old daughter. My husband is in the Army serving in Germany, and he is "living" with his new partner. I have a Civil Service pension but took 4 1/2 years unpaid leave to accompany my husband abroad. His gratuity when he leaves the Army will be £31,080 with an annual pension of over £10,000pa. Will I be entitled to a settlement or will my new relationship (we are not living together) have an effect?
A.	Gill Your new relationship would only have an effect if you were to live together and then only in relation to maintenance. As far as the pension is concerned you should get some legal advice as you have a pension and this will have to be taken into account as well.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	i was divorced in 1997 & never advised i could get a share of my ex husbands pension we were married for 10 years in which time i brought up our children and had no income.i have just re married. please help joanne
A.	As you have remarried you cannot claim now for his pension, it is too late. if you were badly advised, you need to contact another Solicitor as the previous solicitor may have been negligent.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am separated and want to divorce. My 'husband' is 17 years older than me and retired. He is in receipt of a substantial pension. I have none in my own right. Am I entitled to a portion of his NOW given that it his sole source of income?
A.	Yes, you would be entitled to a proportion of his fund even though it is in payment. This would either be as a monthly maintenance payment or a physical transfer of a percentage of his fund into a fund nominated for you, so that when you retire you will have a pension. I suggest you take independent legal advice asap.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My husband and I have been Married for 29years, but seperated for 5years. am I entitled to ask for pension sharing. He says his works pension is not worth the paper it is written on, and is only worth approx £10 a week. He wants us to do a DIY divorce and for myself not to ask on the divorce papers for pension sharing. He is angy I have even thought about it, as we split up the proceed of the house and contents approx 4 years ago, and he thinks I have had more than my share!!!! any advice would be welcome. Thankyou
A.	Margaret Yes you are entitled to look at the pension. However if you have a pension as well, your pension would have to be taken into account as it is the pension assets of both parties that would need to be looked at. If he has a small pension it is the value of the fund that is important not the payment at the end. For instance id you do not have any pension provision you can ask for a pension sharing order for 50% of the CETV (current equity transfer value) of his pension. With the divorce you will need a consent order to be set up to provide for the pension sharing order. The order will also set out what you have already agreed and dealt with and then go onto make a clean break between you, so once the pension sharing order has been implimented. no future claims can be made. The pension fund will set up a fund for you if you do not have a pension already. This will then be paid to you upon retirement. You can then contribute to that fund your self as it grows. Divorce-Online can help you with your divorce using our market leading Divorce LegalPac service which costs just £90.00. The Divorce Service gives you a professionally completed suite of documents, a step by step guide to procedure and free help and support by telephone or e-mail until you are divorced from legally trained staff in plain English. This means we are here to assist you throughout the process from answering simple queries and court related questions to editing or amending your documents all for one fixed fee. With Divorce-Online, the process takes on average 3 months to conclude. In addition to the fee for our service there are court fees payable directly to your local court of: £180.00 at the start of the divorce £30.00 at the end of the divorce. For more information and to order this service goto: www.divorce-online.co.uk/divorce.asp If you have agreed your finances with your spouse then you will need to obtain a court order to ensure that there can be no further claims in the future. This is called a Consent Order and we can also draft this documentation for you to ensure that your finances are settled with the divorce. This order is the only way to record your settlement and to ensure there can be no further claims made. The Order is normally filed between Decree Nisi and Decree Absolute so you may need to order the service as soon as possible to ensure you can receive your order in plenty of time. We have therefore developed the Divorce Extra package to cover both the divorce and finances. This costs £170.00 To order this Goto: http://www.divorce-online.co.uk/redirect.asp?goto=services/Legalcentre/divorceexlp.htm
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife and I separated amicably 3 years ago and are now embarking, again amicably, on divorce and full financial resolution. We have no children and both worked full time throughout the marriage and continue to work full time. We are fully agreed on the appropriate split of marital assets and a consent order would therefore be the obvious way forward. The only practical issue is pension splitting (my pension will be larger than my wifes for a variety of reasons). My question is a very practical one. Can you draw up, in the context of a consent order, the appropriate pension sharing order? The answers to previous questions have left this a little grey. We have worked very hard to avoid arguing and having a legal battle and are keen, with all due respect, to leave solicitors out of it as much as possible. Thanks for the great site.
A.	The consent order we provide will include the appropriate pension sharing order and documentation. Pension sharing orders are dealt with in percentage terms. If you are dividing your assets on (say) a 50/50 basis, you would add your pensions CETV's together and simply divide by 2. That figure is then worked out as a percentage of your fund. That percentage would be the percent placed into the order.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My husband and I were married in 1982 having lived together for six years before that. My husband retired seven years ago but I still have five years to go before reaching retirement age at 60. My husband announced his determination to live an independent lifestyle two years ago which he proceeded to do along with his "protegee" ; he then walked out eight months ago and is living nearby. Our son was 18 this week and is still in full time education; his father pays me £80 per calendar month to cover food costs. Our jointly owned house has increased significantly in value and is now on the market since I cannot afford to buy out my husband's share. Sadly, it now looks as though we have a realistic purchaser! I should like to know if I am bound to sell the house and whether, as my huband is retired, I will be required to pay him maintenance and to share my pension with him as has been suggested. I would also like to know what financial responsibility he will be required to shoulder, if any, for our son, if for example he continues into higher education after a gap year. It would seem that he bears no financial responsibility for me in any way and at best I can only hope for a 50:50 split of our possessions. Finally would I be better off separated or divorced from a financial perspective? Many thanks for your advice. I feel that
A.	Well on the face of it a 50% split is on the cards. However if he earns more than you then you may be entitled to spousal maintenance. A he has pension provision, I doubt very much that the court would make a pension sharing order in his favour. Your husband is not obliged to pay maintenance for your son beyond 18 or full time education. This does not include higher education I am afraid as he is considered to be an adult capable of looking after himself.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Please can you help ? My partner now has his absolute granted. He has 3 children, - 17, 15 and 12. Originally his ex said that she would not ask for any financial help from him, as she gets all the maintenance money for the children, although we look after them from Friday until Monday morning. We also pay for school trips, clothes, shoes etc.. He works full time, but she doesn’t work. We have now received a letter from her solicitors, saying that she wants her pension sharing rights, and is going to claim money from his pension. (He supplied her solicitor with all the details before the absolute was granted). We hope to get married later this year, but we are concerned that she will try to get more money from him in the future. We are paying the mortgage on my house and have some savings plus a holiday home on the coast, plus I own another property that my father lives in. I’m in the process of getting them all into our joint names. (He pays his wages into my bank account). My questions are: Does he have to give her a lump sum now ? We were hoping to get married this year, but all our savings will have to go to her if this is the case. How does she receive this money ? Does it get paid direct into her bank account when he retires ? Is there any way that she can apply for money from these other joint assets if we get married ? Can she claim on anything apart from his pension ? They were in rented accommodation and she took all their savings. Can she claim on my salary, house etc.. ?. (His money goes into our joint bank account). Obviously I am worried that she will have a claim on my properties either now or at a later date. Is there a time limit on this ? In the future, if we buy another property or are given any money or win the lottery can she have a claim on this ? Many thanks for a great site – it has helped me many times in the past few months !
A.	The only solution is to get a final and binding court order which will dismiss any further claims between the parties. If he will consent ot a pension sharing order, this can be on the basis that it is in full and final settlement and then an order can be drafted and filed at court to end any potential claims once and for all. Divorce-Online can draft this for you and help you deal with any Solicitors correspondance about the order for £90.00 + £30 court fee. To order this cut and paste the link into your browser or telephone us on 01235 527382 for more information. http://www.divorce-online.co.uk/services/Legalcentre/consent.htm
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	I am enquiring if you received a long question from me which I sent on Friday last 25 April in respect of finance pensions and whether the worman with whom ny husband is living is entitled to any monies from him - he has been with her since Jul/aug last year she was was on DSS and job seekers allowance and getting housing benefits he has moved in with her. His salary and pension is approx 40k pa - we have to sell the house and I have no where to live or afford to purchase after the sale we have to pay back the mortgage thus leaving approx 32k each if divided - his naval pension of 7k pa he has no life insurance due to a heart bypass 5yrs ago. I am seeking advice on divorce but would like to know my finances - i have to present mine which is about 7k pa I am 68 years old my husband i 57yrs he works for the marconi companies - and lives away on daily expenses having lost his all expenses paid flat because of this woman - how do I stand, many thanks. AB
A.	Anne As is often the case, I do not have sufficient information from you to give you a full reply. You should take urgent legal advice regarding your situation in respect of the financial matters, in particular the sale of the house. It is certainly not always the way that the house has to be sold nor that your husband has to receive half the proceeds of sale. There are many issues to be sorted out here including income, maintenance, capital provision and pension provision. It is far better to deal with these all in one rather than piece meal. With regard to the new partner I would broadly say that she is not entitled to any money from him at this stage. As I have said, I would urge you to take proper advice regarding this situation and any immediate steps that you needed to take, e.g. a maintenance application.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife and I are going to divorce. Things are on hold at the moment, as my wife has agreed to come to Relate with me in order for me to be counselled alongside her in order for me to come to terms with the legal process and divorce itself. Mediation has also been suspended until the Relate process ends. When Mediation does finally take place, there is one issue in particular which is really going to cause problems, and that's the splitting of our pension funds. I am on Incapacity Benefit and have been for over two years. My current total income is £311 per month. I have about £32K in a private pension fund. I have not contributed to this fund for many years, My wife works for a bank and has been a member of their staff pension scheme for the last 16 years. Her employer is by far the major contributor to the fund and she pays only about £15 per month. This is deducted directly from her salary. Hers is a very good scheme. If she dies in service her nominated beneficary (me at the moment) receives four times her yearly salary as a lump sum, a refund of all her contributions to date, and a pension for life, equating to two thrids of her current yearly salary. If she lives to reach retirement age, she would get a lump sum and a pension of two thirds of her final salary. When it comes to pension splitting how would things work in terms of my wife's pension? The marriage has lasted nearly 18 years and my wife earns about nine times more than I get a year. How would a low-contributory pension scheme like hers, but with excellent benefits, be split? There are no children. Before my illness I was in regular work. For the first three years of the marriage, I earnt double what my did. For the last fifteen, my wife has earned progressively more than I. Thanks
A.	The proper way to consider pensions would be for both of you to obtain transfer values and other benefit values such as loss of death in service etc and to work out an equal split of the aggregate values. If this means that she has to succumb to a pension sharing order in your favour for the difference that would be quite normal. At the end of the day you are entitled to an equal division of the assets including pension fund assets and benefits.
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	I have been separated since March 1996 and filed for divorce in November 2001 after 34 years of marriage. My wife was 60 in May and I am 65 next April. Our realisable assets total £1,287,000 of which she is claiming £806,000 against my £481,000 because of the difference in our private and state pension benefits. My private fund amounted to £265,391 in June for Form E and hers £48,804. Mine is in a SIPP Drawdown and I received a recent fuund valuation of £238,269. Hers is still with the Insurer awaiting her instructions. My State Pension starting next April has been estimated at £8185 per year while she already draws hers at £3196 per year. Her Council has claimed and obtained approval of a Duxbury lump sum of £100,000 for the difference between the private funds and a further £50,000 for the difference between our State Pensions on the basis of her expectation of life being a further 20 years. I understand that after divorce when I start to draw my State Pension she can apply to have my higher contribution record used to reassess her benefits. This must surely be taken into account. I have also heard of a recent divorce case in the name of Rawlins? that had a bearing on private fund division. I would appreciate your comments
A.	Graham You will appreciate that your case is a fairly complex and high-value one and also quite well-advanced along the Ancillary Relief route. It is therefore quite difficult for me to comment upon the issues that you have raised and indeed it would probably be wrong for me to do so. I would assume that you have counsel and I would therefore recommend that you raise these queries with your legal representatives. I have tried to look up the case you mention but cannot find any reference to it. I am sorry not to have been of more ssistance.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I married my wife, a German national, while serving in the armed forces. We married in Didcot, England in 1988 and seperated in September 1997 with her remaining in Germany and me returning to UK. We have not seen each other since but have had phone contact , initially quite angrily over a joint endowment policy. this has now been surrendered and payed out equally. We are not divorced as yet. She is now pregant to her new man and I have a 19 month old son to another lady. As such she wants to finalise but states that German law requires her to request a portion of my pension and me hers. Q. Is this true? I have, since leaving her, commuted my army pension into my new police pension scheme and really don't want to give it up! She has stated that if in the UK we can divorce without any cross pension battles and each keeping our own, then that may be the best option, which I am fully in agreement with...obviously! Q. is this a valid option or does there have to be an arrangement over finances?
A.	English law will take precedent if the divorce is carried out in England and if you do not want to have a pension sharing order then you will not be forced to have one. You simply file a consent order dismissing each others claims for income, capital and pensions and the order is binding on both of you.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My husband and I were married in South Africa 4 years ago and have lived in the UK ever since. Because it benefits him tax-wise, we pay more into his private pension fund and have decided not to have one for me. He would like to return to South Africa in about 5 years & I want to remain here. We are both British Citizens. 1.What is my claim to his pension which was meant for both of us? 2. Are we presently bound by SA divorce law or by UK divorce law?
A.	You are bound by English law unless there was a Community Property Agreement drawn up between you. You are entitled to half his pension for the time you were married in my view. To calculate this I suggest you get professional help from our pensions specialists CLT.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Split from wife of 20 years, four years ago. She paid into various pensions during our marriage, I did not. However, I was a 'house-husband' raising our son for eight years of that time whilst she studied and worked. We also had a joint bank a/c until 1992. Do I have any claim on her pension?
A.	Yes of course you do. Pension sharing goes both ways and her pensions are a matrimonial asset. I suggest you get some legal advice on your individual case asap.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have been seperated 8 years (never quite got round to divorce - must soon). If I start divorce proceedings now using 5 years seperation as basis will my wife eligible for the pension I started post seperation. In 1994 I started divorce proceedings but having sorted out the residence of childeren did not pursue divorce. The pension was set up as part of my house purchase, it funds the repayment of the capital borrowed, much like an endowment policy is supposed to. If it makes a difference I bought the house in order to have somewhere to house kids when with me - we got a shared residence order!! Childeren are now 21 & 17 eldest has own accom. youngest recently moved in with me on permanent basis. Thanks for advice, good site. Toby
A.	Technically all assets you both own are still matrimonial property including any property or pensions but that goes for her too. The court however will take into account the fact the assets were accrued post separation and it is unlikely she would be able to claim against any assets you now own and visa versa.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Have posted question to forum not sure if it got there. Married 13 years. Want a divorce. Husbands pay is £3000 (net) per month plus military pension of £600 per month. Joint House Mortgage £41000. two children 12 and 10. He pays me only £1000 per month. DD's are £700 that only leave £300 for housekeeping and children etc. Have asked for £1200 but he says NO way. He has also asked that I leave his military pension alone. As he is only 40 years of age, he will get that plus increases for life. My question to which nobody seems able to answer is am I entitled to any of his pension, either as a lump sum or a monthly payment, if so what percentage. Please help as this will give me a starting point. Thankyou
A.	Yes you are entitled to have his pension taken into account and you may be able to obtain a pension sharing order or earmarking order giving you a share of his pension when he retires. My advice would be to see a Solicitor as soon as possible. You may be able to get legal aid.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I was married in 1985 to a UK citizen. We lived in the UK for 10 years and then moved to Thailand, where we lived for another 6 years. We are now pursuing a divorce. I am a US citizen, now relocated back in the US, while he has stayed in Thailand. We have one child. My questions pertains to his pension in the UK. It was frozen back in 1993, and he has made to contributions to it since that time. It is a private pension and was accrued during our early years of marriage. I would just like to know what the UK laws are regarding pensions. Do each private pension company have their own ways of doing things, ie., earmarking, splitting, etc. The laws are very different here in the US. Can you provide any information as to options? Thank you.
A.	If your petition was issued in the UK then UK law will apply to the finances. If not then you will need to consult with a legal practitioner in the country where the divorce is issued. If issued in England after 1st December 2000 then the pension can be ear marked, shared or offset.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	Pension question. What a great site!—I have learnt more reading the questions, than from any other source! This is a two part question, the first part, I think that I have the answer, from reading other questions, but would appreciate confirmation. I am 54, and my wife 55, we are divorcing after 5 years of marriage. [third time for both of us] I have 4 small pensions [1] 7 year fire service pension [1979-86] [2] personal pension [1986-2000] [3] personal pension [1997-present] [4] joint pension mortgage [1998-2001] The fund value of all 4 pensions is £95000 Am I correct in my thinking that any claim for pension from my ex-wife can only be concerned with time actually married [i.e. she has no claim on the fire service pension, and 50% of the relevant years of the other pensions [i.e. about 1/6th of the personal pensions, and 50% of the pension mortgage policy. Second part. Her solicitor is of the opinion that the fund of £95000—less my wife’s percentage—should be counted as an asset, and put into the ‘pot’, which will make smaller any claim for a percentage split of other assets [house] Surely any pension outside of the married years should not count as an asset, as it accrued before we married. [my wife, who has worked full time since 16, including bringing up her children, claims to have no pension entitlement!] your opinion would be greatly appreciated.
A.	It is not a hard and fast rule but generally speaking pension contributions before marriage do not count. Also what is going to the relevant in your case is length of marriage, (quite short) and your ages. I think it unlikely that a Court will deem your fire service pension to be counted, unless you are in receipt and it may go to income issues. However, without knowing all the facts it is difficult to advise.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have just received court confirmation that our decree nissi has been agreed. To complete the divorce my wife has asked for a TRANSFER VALUE OF PENSION statement. What does this actually mean ? We have been married for 6 years. Many thanks
A.	The Pension transfer value is the main indicator of how much a pension fund is worth but is not the only way of valuing a pension. You need to write to the trustees of your pension fund to request the Current Equity Transfer Value. It looks like she will want to see how much the fund is worth in order to consider whether she should seek a pension sharing order. I suggest you get legal advice on this matter before you go any further.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My husband divorced his previous wife in 1998 after 18 years of marriage. They had a house which was sold on a break even basis so there were no proceeds, no children and the usual household belongings. My husband left her rather suddenly and because of this he let her keep all the household contents. She did not work during the entire marriage and so was awarded 50% of my husband's pension. She has since re-married and her current husband works and earns good money. Is she still entitled to half of my husband's pension? Can we apply to have the original ruling overturned? Thanks very much for your assistance. I am very appreciative of such a great forum in which to obtain legal advice.
A.	This is difficult to answer without knowing the precise details of the original order. It would seem to be unfair for her to receive half his pension on retirement if she was not married to him for a large part of the fund. What normally happens is the amount is based on the number of years married. I suggest you use our Telelawyer service to get immediate qualified legal advice on this case.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I now have my Memorandum of Understanding from the mediation sessions that my husband and I attended. Can divorceonline convert this into a consent order?
A.	Yes we can convert it into a consent order for you, as long as you do not require a pension sharing order. You will also need to get the divorce proceedings underway as the order and associated documents cannot be filed at court until the Decree Nisi has been pronounced.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	i was retired from the police on ill health grounds on the 27th of may this year. my wife left me on the 1st of july and has started divorce proceedings against me.is she entitled to half of my pension as a matter of course. i am not working at present i am in receipt of incapacity benefit and a small monthly pension ( i only served 14 years)i am struggling to live on what i have now i wont be able to manage if she has half my pension. i have two children girl of 18 in university and boy of 15 still in school. i still live at matrimonial home ( wife moved out) the childern live with me during the week and go to my wife on the weekend. my wife is working self employed earnings unknown, can you help me.
A.	It is not automatic that she will get half or anywhere near that. The court look at thwe whole picture before deciding on such matters. They will have regard to your health, your need for housing and of course the need to preserve your income. I would suggest you get legal advice as soon as possible.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have been separated from my wife for 5 years, after 6.5 years of marriage. We have no children, and have sold the marital home and divided the proceeds according to a settlement drawn up in consultation with my solicitor. I would now like to finalise things by getting a divorce, but am worried she may be able to claim part of my pension. At thye time of separation, my solicitor advised this was unlikely due to the short length of the marriage, and the small difference in the relative growth of my pension fund in relation to hers over that time. In fact, her pension fund growth may have been greater than mine for this time. My question is: Can she pursue a claim against my eventual pension rights?
A.	Your Solicitor is right that any claim would more than likely fail if it were taken to court. it does not stop her making a claim as there is no court order preventing her. You are able to divorce on the grounds of 5 year separation and I would advise that you obtain a consent order from the court to prevent any further claims being made between you on the basis of the agreement you reached when you separated.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am about to start the legal process of amicably divorcing my wife after 2 years separation. I have a 'frozen' pension with a previous employer to which my wife is entitled to half. The company pension department have advised me that they require a court order to release the funds to us. How do I get this Court Order, what documents do I need ?
A.	You will need to get a Solicitor to draw up a consent order with a pension sharing element. This is quite complicated so cannot be done by your self. Please feel free to use our legal assist service to find you a pension sharing specialist who will be able to advise you.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I am currently serving in the RAF,I have been divorced for over 4 years(now re-married). The divorce was conducted in Scotland and the courts asked for details of my pension, which I provided. The total value of the pension realised some £28,000 and the court asked for me to pay £15,000 to my ex wife on divorce, if I did not it would acrue some 8% interest per annum. I appealed,as my pension was not due to mature for several years and the rate of interest would eat up my entire pension at a minimum. I was forced to make a deal that worked out to be £20, 000 at such a time that my pension matured, I felt I had little choice. My pension period is 22 years, at the time of seperation I had served 20 years and been married for 16 of these.This seems grossly unfair that someone who has contributed nothing to the fund can take over 80% of my pension. Can I still appeal against this? Your advice would be appreiciated many thanks gary
A.	The law in Scotland is different than in England so I cannot give exact advice. My suggestion is that you go to a Scottish lawyer who may be able to assist. Without knowing the full facts of the case and the history of the marriage it is hard to advise but certainly if the case were in England it is unlikely that you could appeal as the order was made so long ago. I cannot say whether the order is fair as I am not aware as to whether there are any children of the family, whether there were any other assets, contribution to marriage etc. Without these facts it would be wrong to say whether the order was correct, but once again I stress that the law in Scotland is different.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	After almost 5 years of marriage, my wife & I are to be divorced, regarding my company pension scheme, It is a non-contributory final salary scheme based on a 1/60th scheme. Basic salary is presently £14700, and I have been in the pension scheme for 7 years. How would any settlement regarding this be calculated and what amount would be payable. By my calculations, the final pension at present would be 7/60 of £14,700 = £1715 p.a. My wife has a pension scheme (contributory) with fund value of £1400, and what would be the settlement regarding this - again she has been in the scheme for 7 years.
A.	Only the time you have been married and contributing to the scheme will count for the purposes of the Court proceedings, so if you have contributed for the last seven years only the five years will count. This is a broad calculation but gives you an idea, if the fund is worth £10,000 from a seven year contribution only £7,142 of it will count. Your wife has been in a scheme for the same time. I have to say that it is unlikely that your case will have any pension orders. However I am not aware of all the facts and other factors which could be relevant are the age of both of you, other assets and whether there are any children. If you are both young then I would not consider pensions to be relevant particularly in light of the fact that both of you have a scheme of similar term.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I have just received a divorce petition from my husband - he is divorcing me for unreasonable behaviour. Whilst I am not happy with the claims he is making, I am keen to get this sorted. There is no house or children to sort out, and we were only married for two years (together for four). We are both Police Officers, and whilst we were together we could not afford to pay into both pensions, so we paid into my husbands, and mine was put on hold with a view to living off the combined pensions later on in life. I have lost about £5400 in payments, and feel that I should have some kind of comeback from him for this. I shall not be contesting the divorce, but am reluctant to finanlise the marriage until I receive this money from him. I know that he is unable to pay it at this moment - and have not mentioned it to him. I know he wants a quick divorce - he is getting ready to marry again (4th time!). Should I refuse to sign - and thereby he must get the money from somewhere? Can this be sorted out after the divorce is finalised? Would I have a claim on his pension? Thanks for an excellent site - lots of information, and no pressure or oppinions!
A.	You could have a claim on his pension however without all the information then it is difficult to advise. I would suggest that you go and see a solicitor who could perhaps write a letter to your husband to advise that you wish to seek a capital settlement and that you would consent to the petition if he agreed to play ball on the finances. Its not ideal but it could be a way of having matters dealt with. If you allow the divorce to proceed you can apply to the Court to have the financial side of things dealt with if you cannot agree them.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My partner has just started proceedings to divorce his 50yr old wife he is 30. She has decided to defend! He wants a clean break order,she wants everything he's got which is nothing! When they were together she had a large pension. In disclosure at mediation it was revealed it no longer exsits. We feel she has disposed of this to make herself more needy.Is there any thing we can do to prove she has done this?? I look forward to your reply. Please do not publish my name anywhere.
A.	I am not sure how someone can dispose of a pension policy before it matures, as it cannot be surrendered or cash value given for it. It will be frozen if she has stopped making payments towards it and will have a Transfer Value which is what it is worth. I suggest you see a Solicitor as it appears you may be in need of one in due course.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My parents separated at Christmas 1997 after nearly 26 years of marriage. My mum had an affair and left to live with her new partner. My dad eventually sold the property of the marriage and proceeds were divided equally.(Mum had most of the contents). Since the separation, mum and her partner have started a business, are buying a house together, they both work full time and they pay HIS ex partners mortgage, they have just bought a new car and also have a motorbike! My dad has a partner now, they live in rented accommodation and have one car. My dad was paying my mums mobile phone bill too until recently! He wants to do a diy divorce and told mum he has the papers, she told him she will be claiming half his pension which is her right. I know from reading on your site that it's a percentage, is there any idea how much of a percentage it would be? I also read on another site that some public service pensions are exempt from claim, is this true and if so, which ones? My dad is so upset as he was planning to use his retirement money to retire to the coast which may not be able to happen now. Please help.
A.	Hi there. Iam afraid it is not a black and white answer to your question, but the court has to look at the situation the parties find themselves in at the time of the divorce. It would seem that your father is in a much worse financial position than your mother and that he is going to need his full pension to survive in later years. Your father needs to get some legal advice on the financial aspects of the divorce, although he can do the divorce himself as long as he notifies the Solicitor of the case details and takes advice about when to file for the final decree.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Firstly, I think your site is great and has really helped and inspired me! I think I should obtain a Pension Report, but unfortunately cannot afford Regents, is there another way I can get this done?
A.	The Regent report not only values your pension fund but also advises as to whether pension sharing would be an option. We use them because they are at the cheaper end of this market.
Answered by: Simone Katzenberg, Solicitor
Q.	My wife and I separated February 2000 after 4.5 years of marriage and 11 years of being together as a couple. We had a property in a joint mortgage which was eventually sold and I took £5,000 from the proceeds and two endowment policies - one worth £780 which has been cashed and one which is worth around £7,000 still running. My wife had the rest of the proceeds - £49,500 + all the fixtures and fittings including suite (£2,500) stereo, TV/Video, kitchen equipment etc. I have been with a new partner for about 8 months and feel that the time is right to make things official however my wife is reluctant to divorce. Considering that she had the majority of the funds from the property, I am inclined to contest any claim that she makes on my pension benefits. What are my chances of counter claiming at this stage, for half (or equivalent balance) of what I gave to her after the sale of the property? Whilst I do not wish things to get acrimonious, I feel that £50,000 vs £12,000 is a fair and just settlement, especially considering that I was the major wage earner and brought nearly 5 times as much money into the property when we were together.
A.	Its very difficult for me to advise you properly without knowing all the relevant facts of the case. However it does highlight the difficulties that inevitably arise when couples separate, divide assets up between them but don't use lawyers to ensure that all matters are tied up once and for all. In the eyes of the law you are still married and when it comes to dividing up the assets, everything will be taken into account. That means that you will need to disclose what you have now. Of course you can and will argue that what she took or received should be taken into account when calculating what her entitlement (if any) she will have to your pension. If she has her own pension that will be taken into consideration too. I think you should seek legal advice and make sure that when you deal with the divorce, that you deal with the finances too and from what you say the sooner this all starts the better. Good luck.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I have a question with regards to a general financial settlement and pension. My partner is 37 and had been divorced since September 1999 (his wife is now 34 years old). At the time of the divorce they had matrimonial home (which was in my partner's name) valued at £140,000 with the outstanding mortgage of around £25,000, a car valued about £4,000, a motorbike valued about £6,000 and household contents that was normally insured to £45,000. My partner also had a private pension that he started before marriage. They have two children aged 8 and 12. When agreeing a financial settlement, they have both agreed to transfer the house in trust for their children. My partner continues to pay mortgage (£340 per month) and his ex wife lives there with children. He also pays £500 for children maintenance but nothing for ex-wife maintenance. The whole of the house contents remained with his ex-wife. His ex-wife got a car and he got motorbike. He did not take any other assets, other than his pension. My partner has recently rolled over his pension into different fund (he started this new pension a few months back). At the present time my partner is trying to get anciliary relief order to formalise the division of the assets. I am interested to know if, in the current split, can his ex-wife get a part of his pension and if so, how much? Or, could the fact that he rolled over his pension and started a new fund with it prevent his wife of getting a part of it? Also, would the court favourably look on the fact that the only things that he took out of his marriage is his pension and his motorbike and that he has left everything else to wife and children? Also, could his ex-wife get a maintenance from him if she asks? His wife is part time employed working in pub, but is a qualified nursery teacher and manager (my parther paid for her schooling during the marriage). During most of the marriage she did not work or just worked part time. And lastly, my partner and I live together and plan to marry. I am self-employed with income coming from small salary and big dividends. If my assets and income is assessed, are dividends counted into this or I only have to disclose my "salaried" income?
A.	I am afraid that your questions cannot be answered in full as I do not have the full financial picture. I can however advise you that if your partner does not have a Court order dealing with the settlement which he reached with his wife then he is still at risk from future claims. In respect of his pension only the years he was married count for Court purposes. So that if he contributed to the scheme for twenty years and was married for ten technically his wife would have a claim on a quarter of the pension I am not sure what you mean by placing the house in trust for the children. Does this mean that his wife only got the car effectively with the house contents. This settlement does seem odd as there is substantial equity in the property in which she lives. Potentially she could have a claim against his pension and also a maintenance claim however I repeat I cannot advise definitively as I do not know enough about the case. I would certainly advise him to seek advice from a solicitor as his situation could become quite complicated. Sofaras your income is concerned what could happen is that you are ordered to disclose your accounts for the business which would effectively show your income and dividends. However I am not entirely sure whether your income is going to be pertinent to the issues at hand. On the issue of his wife working, she has a duty to mitigate her own needs and if she chooses not to use her skills then that is a matter for her, however the Court would expect her to maximise her earning potential.
Answered by: Simone Katzenberg, Solicitor
Q.	I have agreed via mediation to transfer a sum of my pension to my wife's pension(shared pension)and my employer charges a fee for this.I have informed my wife that I cannot afford these fees,and she should pay them as it is for her benefit.Who pay's?
A.	There is no set answer to this one - its a matter of what you agree between you. So either you can agree or you both pay lawyers or mediators to negotiate either which may end up costing more than the cost of the transfer. If thats the deal breaker, make a decision or compromise in some way.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I’m a member of the forces due to finish my 22 years service within the next 2 years with a monthly pension and a good one off lump sum payment to help my transition into civilian life. I split with my ex wife 4 years ago after 9 years together when my pension would have been worth very little with a lump sum of about £7000. My question; is my ex wife entitled to a share of my lump sum at the end of 22 years service and an amount of my monthly pension (i.e. half of 9 years worth of pension), or would a court find it hard to make a judgement on a forces pension as I will receive it at the age of 44, and finally is she entitled to a share even if the marriage broke down do to her adultery which I have proof of. PS great site!
A.	The Court has to take all the assets of the marriage into account at the time of the divorce. Your pension asset will therefore be included in that calculation of the overall assets. Whether you have to pay her a lump sum, income or a pension sharing arrangement depends on her circumstances and needs as well as yours. The way a pension is valued depends on the scheme and some MOD pensions are dealt with in a different way to others. You need specialist advice from a family lawyer and I suggest you obtain it sooner rather than later.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have a friend whose wife of 24 years left him last year. He is living in the marital home at the moment, but the time is coming when he will need to sell it to give her half the proceeds. He has a good pension from the short time he worked in the mines, and he does not want to split this with his wife. I thought that he had no option but to do so. However, he says he is prepared to give her more than 50 percent of the proceeds of the sale of the house in lieu. Is this feasible? Is there another solution, or will he have to pay up? She has not made any mention of this pension yet, but neither of them have seen a solicitor, and presumably he will have to declare it when that time comes. At the moment they are discussing things amicably, could this pension be a matter for compromise?
A.	The court will take the value of all the matrimonial assets into account when deciding the division. They will start from a 50/50 division, unless either party can show that their needs would not be met. Pension sharing is not always considered to be practical and in most cases there will still be an offset against the value for other available capital. This is something that will require legal advice. Your friend may qualify for Legal Aid.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Regarding pensions; one of my pensions is a private one, taken out in 1989, I married in 1991 and stopped contributions in 1993. Due to the growth of the stock markets, this pension is worth 4 times the value in 1993. Does my wife who I am currently divorcing have a claim on the growth since 1993 or just the value of the difference of the 1993 value and the value when we married? To complicate matters, I made a small transfer from a company pension to my private pension in 1999. What do you think?
A.	The assets including Pension Transfer values will be valued as at the present time and will be taken into account as a whole with the other matrimonial assets. It does not follow that there will be a pension sharing order as you may be able to offset against other assets. The general view is that your assets will be divided equally unless either party can show that this would not meet their needs. You need to get specific advice about your pension assets and I would advise you see a Solicitor if you have not already done so.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	Hello, I'm after some advise on pensions please as I hear and read different things all the time. a. Is the division of a pension based on the length of a marriage during which contributions were made i.e. 10 years or the total value regardless. b. My estranged wife filed for divorce before 1st Dec but did not follow it up so I crossed prayed and have now filed my own. However this was after the 1st Dec. Will the split of my pension be based on the old or new law. c. I have been separated over 2 years and in that time I have paid out £10,000 in joint debts. In theory she would owe me half of that but in reality how would the court act on this fact. Would they deduct £5,000 from what I might have give her from my pension. I have no other assests. d. I asked my solicitor several times before 1st dec about cross praying before the new laws came in but he advised me that because I don't contribute to my pension and there is not a fund that money can taken from that it wouldn't matter. It's Armed Forces pension. Have I been wrongly advised.
A.	a. The figure when calculating what part of the pension is applicable to be considered within the matrimonial finances is that which has accrued during the marriage. For example if you have contributed to a pension for 20 years but only have been married for 10 of those years then only one half of the transfer value will apply. Bear in mind that this is only a broad guideline. b. The pension law applicable will be based on the new legislation applicable after 1st Dec 2000. However bear in mind the new law only changes what can be done with pensions, not how they are taken into account. c. The fact that you have met joint debt payments in the period of separation will be a factor the Court would consider, provided you can show that they were matrimonial debts. You should be given credit for this. How the Court deals with this is difficult to say. It could be offset by other assets, or your wife could be ordered to pay you a lump sum. Without knowing full details of the case it is hard to say. d. Armed Forces pensions are different from private pensions. However as I understand it pension earmarking orders can apply to them. I do not think that pension splitting orders can apply to them so the new legislation will not really effect you as far as I am aware. You should check with the Army to clarify this point. Pension splitting was the new legislation bought in, in December 2000. Pension Earmarking legislation applied prior to this date. I obviously cannot comment on whether you have been wrongly advised. Your own solicitor will have a far better knowledge of your case and will be bale to give you more informed advice than myself so I would urge you to discuss these issues with them.
Answered by: Simone Katzenberg, Solicitor
Q.	My wife and I have seperated quite amicably and plan to divorce after less than 6 years marriage (we are in our 30's). We have property, but little or no equity in the property. Our only assets I can think of are my wife's car and my pension. My wife does not have a pension. Does the law require me to pay a cash settlement to my wife of 50% of my pension assett value? Or transfer some of my pension to my wife. My pension has been paid over 14 years, and we have been married for less than 6. We would like to keep things as amicable as possible, but I am worried my wife will find 50% of my pension value too lucrative to turn down....we are both working and have no children and we both plan to continue working after divorce.
A.	Given that you are both young, that it is a shortish marriage and there are no children, the division of assets is likely to depend on what each of your contributions were towards the matrimonial assets. Often it turns out to be a balancing excercise ie you set off say the equity from the property against the pension. You need to understand that in dividing up the assets, everything is counted in. That means all assets in your name, her name and those held jointly. By way of set off, she could be entitled to part of your pension, taking into account the division of proceeds from the property and a share in your pension but only in respect of its value over the last 6 years and not the 14 years during which you have contributed towards it. What may make a difference is the levels of your income. If yours is significantly higher than hers, it may mean you need to pay a bit more for a period of time. But without further details in this regard I am afraid I can't be more specific. As always it is always worthwhile seeing a lawyer so all your questions can be answered as fully as possible.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My wife and I are considering Offsetting and Earmarking with regard to my company pension. If we agree to offset and I pay a lump sum now is it usual for the ongoing maintainance I will pay to stop when I reach retirement age. If it continues into retirement I would effectively be paying twice. If we choose earmarking is it usual for maintainance to stop when the earmarking order comes into effect and my wife receives a pension income instead.
A.	If there is a maintenance order in existence then it will continue either for a specific term, (if written into an order) or until a variation is sought or agreed. If you offset your pension, and your wife is compensated with other assets, but a maintenance order is made then this will continue into your retirement. You would have to seek a variation of this order at the appropriate time. The Court would then look at the financial position of both you and your wife and consider whether the order should be varied. I have to say that if you have a maintenance liability now unless there is substantial capital to buy an annuity for your wife then it is likely that some form of maintenance will continue into retirement. Of course, this will depend upon your pension income. If you earmark your pension and she is receive a pension income upon your retirement then it would be reasonable to assume that any order for maintenance would be worded to cease upon retirement and the ear marking order apply. The issues you are considering are very complicated and I would urge you to seek advice from a solicitor if you have not already done so. This area is fraught with problems and you may need financial advice as well as legal advice. Any order will need to carefully drafted to protect you in the future.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am about to start divorce proceedings after 4 years of marriage. I have a pension transfer value of about 20k , which has been paid for about 16 years. What percentage would my wife be entitled to.
A.	That is a very difficult question to answer, as you have to take into account all the assets in a settlement before a figure will be arrived at. If your wife does not have a pension, then more weight will be placed on her need for a retirement income if she is older and unable to set up a fund herself. If you have only been married for four years, then it is unlikely the court would see a need for making a pensions order if she works and can provide for herself in years to come.
Answered by: Tracy McCormack, Solicitor
Q.	My husband and I divorced in 1989. I had previously been awarded maintenance through the Magistrates court. When we went to see the judge he said he would not make a financial settlement as my ex-husband had some debts and he told us to come back in 2 years. Neither my ex-husband nor I have gone back. When my solicitor finalised the legal aid papers she left this matter as pending. Now 11 years later I am wondering if I should pursue this matter or leave it. The only thing is my ex-husband is in the RAF and obviously his pension was something I was originally interested in at the time. If I went back would I be able to claim part of his pension or not. Should I leave things as they are?
A.	As you have not had a final order for ancillary relief, the court will be able to consider all the matrimonial finances as they are today, but would obviously take into account the period of separation and the assets that have accrued since the Decree Absolute was pronounced. The only Pensions order you would be able to obtain is what is called an earmarking order. This orders him to make a payment to you upon retirement. This can be either a lump sum payment or periodical payments. You will need to obtain the services of a solicitor for this and I suggest you use our LegalAssist service to find a reputable family lawyer in your locality.
Answered by: Simone Katzenberg, Solicitor
Q.	I have recently received a Decree Nisi. I am awaiting a claim from my wife regarding ancillary relief. The problem that has arisen is that of the division of pensions. As an ex soldier, I receive a military pension, a military medical pension, and my wife is entitled to a widows pension on my death if we remain married. We both have current occupational pensions. Could you please give me some advice as to how the current legislation deals with pensions, and how the problem of the widow’s pension can be dealt with? I believe that she is attempting to delay the Decree Absolute on the grounds that I should pay a lump sum in lieu of the widow’s pension. My wife is currently claiming that on top of the family home (£110,000 worth of equity), a cash settlement of £20,000 and £500 per month maintenance, she is entitled to the lump sum in lieu of the widows pension as mentioned. We were married for 32 years, are both 53 and have no dependant children. My wife lives alone in the family home. I live with my new partner and stepdaughter, pay their mortgage etc., but have no legal mortgage commitments other than the family home. I have been paying £500 per month voluntary maintenance since the separation 2 years ago. My wages are £35,000 p.a and my wife's income is in the region of £20,000 p.a. Thank you for your assistance and I look forward to your advice.
A.	This is complicated and not easily dealt with. If the divorce petition was issued after 1st December 2000, some of your pensions may be capable of being split between you. However I suspect it was issued before then. Your wife can claim part of the lump sum that would be payable. You will need to find out what can be done with your pensions as well as consider what her claim is overall taking into account the assets that she will receive. A word of warning, if the decree absolute does go through before the finances are resolved, speak to a lawyer first to ensure that you are protected in your claims. I think you need to get legal advice so the overall settlement can be looked at and not only the pensions.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I am already retired on a pension, 50% of which goes to my wife upon my death but only if she is living with me. In the case of a divorce would the pension be split between us and if my wife pre deceased me would I then receive my full pension once more. If I pre deceased my wife would she continue to receive part of my pension or would it "die" with me
A.	Petitions issued after 1st December 2000 can be made subject to a pension earmarking order and now pension sharing order. Within the proceedings the Court could order part of your pension to be paid to your wife. However what is likely is that a maintenance order would be made, this would be better as you would retain the whole fund and if your wife died the claim would die with her. Pension law is quite complicated and you should seek expert advice before dealing with anything in this regard. This may mean seeking assistance from a solicitor and financial advisor.
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	My husband petitioned me on October 4th claiming unreasonable behaviour by me. we separated in march 2000. we have been married for 21 years and have 6 children all of whom live with me. his petition is weak (according to my solicitor). all our assets are pension based ( his pension). we lived in rented accommodation. clearly I wanted to wait for December 1st and am defending the divorce. we have a court hearing arranged for December 12th. my 3 hours of legal aid is used up, my solicitor says legal aid not available for me for defending unreasonable behaviour (lack of affection which I deny absolutely). should I, can I, issue my own petition privately? I have read Rosemary Carter's article about the ins and outs of pension sharing. I want to issue my own petition and ask the court to consolidate ( I think!). what does this actually mean and are there any other options to me? just want to say divorce-online is excellent by the way!
A.	As a private client only solicitor I cannot advise on the issue of whether legal aid will be available to defend unreasonable behaviour petitions. I always advise on eligibility in terms of financial position alone. District Judge Roger Bird says in this weeks Law Society Gazette ' Provided there is no decree absolute and you have grounds for divorce there is no reason to why the Respondent should not file her own petition. It would be then be for the Court to decide how the two petitions were to proceed.' He goes further and states' that this method cannot guarantee successes but that he thinks the Courts will look sympathetically. He says' you should definitely file an answer. I would concur but add the warning that defending a divorce will add to the cost of the matter. Whatever you decide to do you should act quickly. If you act today you could issue before the deadline occurs avoiding the issue. I hope this helps. I am glad you like divorce-online. I agree, and think it provides a really useful aid but you still should formally instruct a solicitor. I can be contacted on the numbers shown on the site. Frank. Frank
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I got divorced in 1994, I came out of the divorce with nothing, but I would like to know if I can claim for a share in my ex-husbands company pension. We both worked for the local council, and through error, I never contributed to the company pension and did not want to as in for first few years of working for them, if I died my ex-husband would not have recieved my contributions. We were married from 1986 until 1994 and he was contributing to his company pension throughout this period. Thanks Ana.
A.	It depends on whether you had a final order made within the proceedings relating to finances. If not then you could claim for a pension Earmarking Order which allows the court to order that you receive a lump sum or monthly payment from his pension when he retires. You will not be able to get a pension sharing order under the new legislation which comes into force on December 1st 2000. You should see a Solicitor to get further more detailed advice. You may be able to get Legal Aid.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	What is the reasoning behind your advice not to petition before pension splitting comes into force?
A.	We do not advise you not to Petition but to think very carefully before doing so. If there are pension assets on either side then you will be able to apply for Pension Splitting after December 1st. Practically this will apply to more women than men. It means the Court can award a proportion of the other spouses' pension to be paid into a seperate scheme.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	Hello, I live in Northern Ireland. My wife and I were married for 4.5 years and have separated in Jan 2000. We have a legal agreement which she had drawn up with her solicitor, which I signed, in which we agreed who got what and that neither would have any further claim on the other. There is no specific mention of pensions and there is no mention of blame on either party. The cost of this legal document was £700, which we shared. With the recent announcement in the press of the change in pension law I am concerned that my ex is now liable to make a claim on my pension. Also, with a legal agreement such as ours, do we need to instigate the full divorce proceedings? Do I have to wait another year? What are the financial consequences to me? Thank you
A.	It sounds like you signed a separation agreement. Whilst these are not legally binding and are almost impossible to enforce, they do carry substantial weight when the parties come to divorce. If a person is seeking to change the terms of the separation deed when you come to incorporate the terms into an order within the divorce proceedings, they will have difficulty in doing so unless circumstances are substantially different. In normal circumstances the terms are incorporated into an order when you get divorced. Sometimes if the matter is in dispute the Court may not carry over the terms, in situations where one person was not legally advised or if full disclosure of someone's finances was not given. If when you entered into the deed pensions were considered and taken into account, it is unlikely that your wife will be able to pursue a claim. The recent change in pension law only changes what can be done with pensions not that they are now taken into account. Your wife's solicitor should have advised her on pensions issues at the time of entering into the agreement. The agreement also probably states that except for as expressly provided neither of you can make any further claims on each other, this will take into account pension claims. I have no idea how old you both are or how long you were married. If you are both under 45 and were only married a short time then it is unlikely that pensions would be a pertinent issue in any event. I qualify all the above with the advice that you should go and see a local solicitor as law in Northern Ireland may be different to that of England & Wales.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have a private pension as I'm self-employed. I accept that my wife is entitled to half of this and obtained a valuation as of the date of separation. This was issued as a transfer value and was for slightly less than the value of the fund. My wife has now instructed an actuary to value my pension and I've signed a mandate to this effect to allow this. I can understand the requirement to use an actuary to value an occupational pension where projection is involved but surely a private pesion is only worth the transfer value. What does she hope to achieve with an actuarial valuation of a private pension.
A.	You are right about Transfer Values and private schemes, but you can also nominate for death benefits with some schemes and Transfer values can be calculated in a number of ways (don't ask me how!). An actuary will look at all the calculation options and give a range of values and has also got credibility on fund projections than the fund administrators and is completely independent of the scheme, the member and the enquirer.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I divorced in May 1996, after 22yrs of marriage, the financial settlement is not yet finalised. My ex handed the marital home back to the building society leaving a large shortfall after they sold it. Our children are now beyond C.S.A limits, I finished paying in Sept 2000. I am, however, still paying off debts accrued during the marriage. Although nothing has been signed, I negotiated that my ex could have £15000 of my pension lump sum, probably due in 3 years time. My ex had been co-habiting for some time and I now learn that she re-married 2 weeks ago, a small fact that she has not informed me of. Her husband is in full time employment, earning a good salary. Does her re-marriage change her rights to part of my pension? I understand our divorce was too early for "Earmarking" orders. Your opinion would be most welcome. Thankyou.
A.	If your wife was the Petitioner and the prayer in her petition was full she can continue a claim for a lump sum but not maintenance. However if your wife was the Respondent to the Petition then her remarriage would bar her from making any application for financial relief and you would be protected in respect of your pension, unless she had already made a separate application. You are correct when you say that your Petition was issued before any pension earmarking provision. That does not however prevent her from claiming a lump sum but on the facts it seems unlikely she will succeed but that is difficult to say without all the information of the case.
Answered by: Gilliane Williams, Welfare Benefits Expert
Q.	i divorced my husband in jan 2000 1)no financial settlement was made before I received my decree absolute is it to late to make one now 2)do I have any rights to his company pension he is 42 3) if I re-marry do these change
A.	Firstly, obviously it is always preferable to settle financial issues before decree absolute, however it is not too late to address these issues now. Secondly, You may be able to claim part of the pension as part of a settlement, this would depend upon the particular circumstances of the marriage. Thirdly, if you remarry, a spousal maintenance order would cease upon re-marriage and cannot be re-enforced if that marriage does not work out. It must be noted that financial issues can become complicated and issues such as pension rights are far from straight forward, therefore it would be advisable to seek specialist legal advice on these matters. Please do not hesitate to contact us if we can be of further assistance to you.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	my parents applied for a decree nisi in 1987. There was a long delay until a financial settlement was reached and my father received a letter in 1989 that his settlement had been agreed and he transferred the funds to my mother in full & final settlement. However he recently needed a copy of the divorce papers for his pension and was advised that my mother, who was the one who applied for the divorce, never applied for the decree absolute. Are they still married? How can he get a decree absolute and is it out of time? Can she apply for a further financial settlement, including pension rights? Thanks
A.	Your parents are not married but as the decree nisi has not been made absolute the divorce has not been finalised and they are not free to marry again. The marriage is "in limbo". The absolute can be made upon the application of either party but an explanation will need to be given as to the delay.Your mother could apply to the court by letter but the procedure is different for the Respondent (ie your father). He will have to file an application to the court with an Affidavit in support and explain the reason for the delay. Your mother will have to served with notice of this application and there will be a hearing at the court. If the financial settlement was by order of the court then your mother cannot apply for a further orders if the original order was a "final Order" If there was just an agreement then she may be able to do so but is unkiiely to succeed particularly if both parties were legally represented. Your father should seek legal advice as it will be necessary to consider the terms of the order or the agreement made.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have given my wifes' solicitor my pension cash transfer value, a projection of the fund for earmarking purposes and a copy of the scheme booklet which details all the entitlements. WE are hoping to ear mark part of my pension for my wife. The solicitor is now seeking my written permission to contact the scheme for information. Do I have to give it, and what kind of information are they looking for, as I seem to have given them everything that my employer can give?
A.	The Pension trustees are a more reliable source of information than a party to the proceedings, for evidential purposes and are likely to be able to give more detailed information on values. I suggest you would be wise to give permission for this disclosure as not to do so could be inferred as hiding something.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	This is a pensions question in three parts; 1) My wife and I separated 2 years ago and are now petitioning for 2 years apart. I have a cash transfer value on my pension at the date we separated, but she wants to include the money I have paid in in the last two years, even though she made no contribution. Is she entitled to claim this money? 2) My pension is public sector, and there is no pension fund as such, incoming funds are used to finance pensioners. How will, if at all, the forthcoming pension splitting laws effect such schemes? 3) We have agreed to split our assets, including the pensions, 50%/50%. My wifes' solicitor is suggesting she cannot ear mark her full 50%, only 33%. This is causing problems because she wants the balance from the capital on the house. If I am agreeable, why can't she have her 50% ear marked?
A.	Answer 1. Broadly, when dealing with pensions to ascertain the amount which can be considered for the financial proceedings we look at the total years of contribution and then the total years of marriage. Therefore if you have contributed to a pension for 40 years but have only been married for 25 of those years. The amount applicable would be 25/40th's. There is some argument that your wife should not benefit from accrued value since separation but the Court's can determine otherwise. However if your wife's pension has also gone up you will of course benefit. 2. Sofaras this question is concerned you will need to check the terms of your pension with the Trustees. Each fund has different rules and the terms of any agreed order must be checked and approved by them prior to the order being submitted to the Court. 3. It is not clear what you are asking. If you have agreed to split the assets on an equal basis it may not be necessary for any earmarking orders to be made. It would seem to me unnecessary to ear mark both pensions. Bear in mind that although the Courts can ear mark and split pensions they do prefer to deal with matters on a clean break basis if at all possible. I clearly cannot advise you properly without all the financial information and disclosure, I would refer you to the FAQ's on the site for factors the Court considers when dealing with ancillary relief. Also I would advise you seek advice from a solicitor particularly if you are considering ear marking orders which can be complicated, you must make sure you are protected adequately for the future.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I wonder if you can help me with a query. My partner has recently got divorced and there is an earmarking order against his pension from a previous employment, whereby his ex-wife recieves 50% of the lump-sum and the ongoing monthly payments. This pension becomes payaable in 6 years time when he reached age 50. As he does not want to draw a pension himself in 6 years time, but keep the money invested for his retrement, he wants to transfer it into his new employer's scheme. However, if he does so, he is concerned that she will then be entitled to half his entire pension, rather that the original pension. Can you let me know whether that is the case. Also, would there be anything to stop him doing this because of the earmarking order. As I understand it, the earmarking order would simply be transferred with the pension. The other complexity here, is that my partner has been ordered to pay his ex-wife's legal costs and her lawyers are threatening to seize his half of the pension, once it is payable in 6 years time in order to pay their fees. Do you know whether they would be able to do this. We have been led to believe that the new Humna Rights legislation might make this difficult for them. As the pension is quite valuable, he need to protect it. I'f be grateful for any advice that you can give me. Many thanks, Helen Stephenson
A.	This is a complicated issue. I must qualify my answer by advising you to seek independent financial advice when considering any aspect of transferring your pension. Without seeing the terms of the original order and also the rules of the existing pension scheme I cannot say what you would or would not be able to do. The order may contain undertakings that could preclude you from moving the fund. However if the fund was moved it would almost certainly be impossible to differentiate between the old and new and therefore your partner's ex wife would probably benefit from the increased fund. Bear in mind that you may need her permission to deal with the fund as well. The terms of the order and the fund rules would need to be considered by the financial advisor. Sofaras the issue of costs are concerned, once again without seeing the term of the order on this point it is difficult to advise. If the order cannot be enforced without leave then your partner's ex wife's solicitors have probably indicated that upon receipt of the pension lump sum they will seek to enforce. The order for costs is an order which the ex-wife has the benefit of, not her firm of solicitors. It is unlikely that the Human Rights Legislation will negate the need to pay the debt if it is owed.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I re-married my ex wife 1 year ago after a clean break divorce. Six months into the marriage she decided to leave me. Is she going to be able to claim against the house which is in my sole name and make claims against my Navy pension and current salary? There is also a young child involved. The child is not mine but I agreed to take him on when we did remarry as the child's real father would not support him. My wife left the marital home last December and is not being homed elsewhere in England. Can you please advise me on where I stand?
A.	When the Court considers financial provision between parties to a divorce they have regard to the Section 25 factors. One of the factors is the length of the marriage. In your case they will only consider the second marriage, and therefore it is unlikely that your wife will have a claim on your pension. However bear in mind that I have no information on either yours or your wife's assets so it is difficult for me to give definitive advice. However, the Court will also consider any other information pertinent to the case. The fact that you entered into a clean break consent order previously will be taken into account. Maintenance for the child is a separate issue. If you have treated the child as a child of the family then your wife may be entitled to claim maintenance for him through the Court. This is one occasion when the CSA will not be involved as you are not the natural father. However if he is still around then he can be pursued.
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