When a couple decides to divorce and go their separate ways, finances are often concerned.

Whether you have children or not, it’s recommended that you and your ex-spouse sit down and come up with a financial settlement you’re both happy with.

This is particularly important for large assets, including your or your ex-spouse’s pension.

Your pension should always be included in the financial settlement, whether you’re divorcing or dissolving a civil partnership.

This is because, in England and Wales, the divorce doesn’t cut the financial ties between the ex-spouses, making it possible for one party to claim the other party’s pension decades own the line.

When seeking to legally separate a pension or a set of pensions, the mechanism by which you do this is called a pension sharing order.

Can my ex-husband or wife claim my pension after divorce?

In short, yes, unless you have agreed and signed a financial consent order following the divorce.

Your ex-spouse can absolutely claim your pension after your divorce if there is no legally binding financial agreement in place.

Pensions are amongst the largest assets of the marriage and many ex-spouses will seek to make claims against their previous partners; even for years or decades after the divorce has been finalised.

What are a spouse’s rights to pensions?

Often, pensions are neglected during the financial settlement proceedings. Even if you have agreed on a settlement, you need to confirm it through a court order to make it legally binding.

Keep in mind you can only share your pension with your ex-spouse if you have been married or in a civil partnership.

The spouse’s right to your pension will depend on a number of factors, including but not limited to:

  • The length of the marriage
  • Time since the separation
  • Age of any children or dependants
  • The financial situation and needs of both parties
  • How you and your ex-spouse behaved throughout the proceedings

How courts deal with pensions

Normally, when a marriage ends in England or Wales, the court will deal with the pension arrangement in three ways.

You can either receive a percentage share of your ex-spouse’s pension pot: known as pension sharing. This money will be legally treated as yours.

Alternatively, you can offset the value of the pension against any other assets: for instance, you can keep your pension but your former spouse will keep the family home.

Lastly, it’s possible that some of your pension will be paid to your former partner or vice versa.

This is known as pension attachment and resembles a maintenance payment that’s made directly from one party’s pension to their former partner.

It’s recommended that you have a talk with your ex-spouse and agree on how the pension and any other large assets will be split.

Once you have reached a divorce settlement, instruct your solicitor to draw up a ‘consent’ or court order to legalise your financial settlement.

Once it has been approved by the court and the divorce and financial settlement are finalised, neither party can make any further claims for money in the future.

What if I have contributed to the pension after my divorce?

A common issue many divorcees face is whether their ex-spouse may claim their post-divorce pension contributions.

The common argument is that your ex’s claim should only include contributions made while the two of you were together.

However, in some cases, the Courts can be persuaded that any post-separation contributions should be shared.

This is particularly true if you haven’t severed your financial ties with your ex via a Financial Consent order: this would mean your ex can claim your pension for decades after the two of you have gone your separate ways.

Pension claims and remarriage

Remarriage poses an interesting legal conundrum. If you and your spouse divorced without a Financial Order in place, your finances are generally left wide open.

If one of you remarriages, however, they are barred from making certain financial claims against the ex-spouse.

This is known as the ‘remarriage trap’ and does have its limitations: it can bar the remarried party from claiming property, income or savings but doesn’t extend to pensions.

How to prevent a pension claim?

If you would like to ensure your ex-spouse doesn’t have any claims on your pension, don’t make the mistake of thinking a divorce also severs your financial ties with each other.

The surest way to do so is by getting a Financial Consent Order.

In case neither you, nor your ex-spouse wants to make any claims against each other, the Consent Order will also guarantee a clean break between parties, making the divorce proceedings much smoother.

 

This post was written by Mark Keenan. Editor of the Divorce Online Blog and Managing Director of Online Legal Service Ltd. Mark has been writing about divorce and related subjects for over 20+ years and is an expert in legal marketing.

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