Navigating the financial implications of divorce can be complex, especially concerning pensions, which often represent a significant portion of a couple’s assets. A common concern is whether you can make a claim against your ex-husband’s pension upon his retirement, long after your divorce has been finalised in England and Wales.
Understanding Pension Rights in Divorce
In England and Wales, pensions are considered a joint marital asset, subject to division upon divorce. However, the timing and manner of this division depend on the financial settlement agreed upon or ordered by the court during the divorce process. Typically, pensions are addressed in one of three ways:
1. Pension Sharing Orders: As mentioned earlier, this involves splitting the pension at the time of the divorce, giving each party a share of the pension pot to manage independently.
2. Pension Offsetting: The value of the pension is offset against other assets. For instance, one party might keep the pension while the other receives a greater share of the marital home or other investments.
3. Pension Attachment Orders (Earmarking): This less common approach dictates that a portion of the pension benefits be paid to the ex-spouse when the pension is accessed.
Making a Claim After Divorce
If pensions were not addressed during your divorce, or you believe there might be grounds for reassessment, here are some considerations:
1. Final Financial Orders: If a financial order was made by the court and pensions were included, it is unlikely you can make a new claim, as these orders are intended to be final and binding.
2. Clean Break Agreements: These agreements aim to financially separate both parties entirely post-divorce. If such an agreement was in place and pensions were not included, reopening the case is challenging without significant circumstances like undisclosed assets.
3. Lack of Pension Provision: If pensions were not discussed and there was no financial order made, technically, a claim could still be made, although it requires fresh legal proceedings. This can be complex and would typically involve demonstrating that pension rights were not properly considered.
4. Timing Considerations: The longer the time elapsed since the divorce, the harder it might be to make a claim. Courts prefer to resolve financial matters at the time of divorce to provide certainty and closure.
Steps to Consider
– Legal Advice: Consult us to assess your individual circumstances. They can help determine whether you have grounds to make a claim and guide you on the process involved.
– Review the Divorce Settlement: Understand precisely what was agreed upon regarding pension rights at the time of your divorce.
– Open Communication: If possible, discuss the situation with your ex-husband to see if an amicable settlement can be reached without litigation.
Conclusion
While the possibility of claiming against an ex-husband’s pension long after divorce is limited, each situation depends on specific circumstances related to the original financial agreement. Legal advice is paramount to explore any potential eligibility based on your unique circumstances. Taking proactive steps during the divorce process to address all aspects of financial settlements can help prevent future uncertainties and disputes.
This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 15th January 2025 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of the capital’s leading divorce lawyers. His profile on the independent Review Solicitor website can be found Here