Research by Glasgow and Edinburgh universities has suggested that many women separating from their husband are deciding against making a claim on their partner's pension. This may be because pension holders tend to be extremely reluctant to relinquish a substantial part of their retirement fund or simply due to the fact that it can be a complex area of law. But what rights do you have to pension sharing and how do you go about enforcing those rights?
Since 1 December 2000 separating spouses, and now civil partners, have had the option to apportion pensions on divorce or dissolution of their civil partnership. Unmarried couples do not have this same right. There are three ways in which pensions can be 'split':
- Sharing: when a proportion of your ex-partner's pension is reassigned to your name. You can keep this new separate pension in your ex-spouse's pension scheme or transfer into a new or existing scheme of your own.
- Offsetting: when the value of the pensions are offset against other matrimonial assets. This is often the preferred approach of divorcing couples as the pension holder retains their full entitlement while their ex-spouse obtains a more immediate financial benefit.
- Lump sum: when a proportion of your ex-partner's pension is earmarked for you. You will not be able to draw a lump sum, or an income, from the pension until your ex-partner begins to earn from the pension. Earmarking a lump sum is an option rarely used by family lawyers.
Pensions can prove to be a substantial part of a couple's joint assets. If an agreement cannot be reached you retain the right to seek a pension sharing order from the Scottish courts. Such an order would force your spouse or civil partner to share their pension. This complex area of law can be further complicated depending on the type of pension and whether your spouse is already drawing from it.
It is always a good idea to take the advice of a family lawyer when you are considering separating but especially important if you believe you may have a claim on your partner's pension. Get in touch with our experienced family law team based in Glasgow and Edinburgh.
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