Steven Wade is a family law advisor (McKenzie Friend) with nearly 20 years of experience helping people represent themselves in court. Having been through the system personally and supported thousands of others since, he knows what it’s like to face the stress, confusion, and pressure of doing it alone. This blog shares practical insights that empower you to take control of your case — without the legal jargon or the hefty solicitor’s bill.
Am I entitled to my husband’s pension?
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Am I entitled to my husband’s pension?
- Introduction
- Married or unmarried?
- What laws deal with finances for married people?
- What assets and liabilities will the court look at?
- How are pensions dealt with?
- How does the court divide assets?
- What are the factors a court will look at?
- Conclusion
Introduction
This blog post is written with the jurisdiction of England and Wales in mind. Scotland and Northern Ireland are separate jurisdictions and so is everywhere else in the world – and the law differs wildly in different places so the advice is likely not applicable if you’re in one of these places.
In England and Wales divorce, child contact and finance are separate – there is a separate applications that can sometimes impact each other.
Divorces are done online; financial cases can’t start until a divorce is kicked off. Financial cases don’t start automatically though and they’re not mandatory either. if you want to deal with finances you’re going to have to make an application for that to happen.
What happens when a couple split differs drastically depending on whether they were married or not and is also affected if they have children together.
Married or unmarried?
It makes a difference! There’s no such thing as `common law marriage‘ in law, nor does cohabitation make much difference. It doesn’t matter how long you’ve been with your partner, how many children you have with them, whether you have a joint mortgage or bank account or anything else at all. Financial provision for any children can be addressed however (but under a different area of law to that of marriage).
Unless you are married to your partner your rights are negligible compared to those you gain from marrying. The marriage needs to be an `official one’ too – not a religious one (although this has been tested somewhat in the courts and is a grey area).
While marriage is `just a piece of paper’ to some people – it isn’t in the eyes of the law.
Being married changes everything and can be the difference between a reasonable share of assets when you part and walking away with just about nothing.
If you’re unmarried there are options but they’re dealt with in another area of law, are more limited in scope and with less chance of success (such as a Schedule 1 under the Children Act or under TOLATA).
What laws deal with finances for married people?
It’s the Matrimonial Causes Act 1973. Among other things it sets out how divorces are dealt with, children and finances.
This is where being married really differs from cohabiting couples.
The finance section includes details of how a court will decide to divide assets if a divorcing couple cannot agree how it should work. The good news is that the factors a court will consider are listed. The bad news is that even with all the information needed to come up with something fair the court may see things likely in a different way to you and deciding something you aren’t happy with.
What assets and liabilities will the court look at?
Everything. All assets and all liabilities. This includes:
- Houses (regardless of whose name is on the deeds or mortgage).
- Cars (regardless of whose name they are in).
- Who earned the money (in any way).
- Who spent the money (no matter what they bought).
- Who gave you something (regardless of who and whatever reason)
- Who inherited anything at all.
This includes pensions.
It doesn’t matter whose name the pension is in. It doesn’t matter when it was started, how much it was for
It’s not possible to `ring fence’ things and take them out of the equation unless you have a pre-nup. If you do have one of those you need to make sure it’s difficult to challenge because one that was put together badly or in the wrong way leaves it open to challenge by an ex spouse who has changed their mind about it all.
How are pensions dealt with?
For a court to make an equitable decision it needs to have `full disclosure’. That is, it needs to have information about all assets and liabilities both parties have or else chances are someone is going to lose out.
It’s far from unheard of there being incomplete disclosure. Or to put it diplomatically…people `forget’ to include details of assets (including bank accounts, pensions, houses and other stuff) or do things like sell houses for a pound/give large sums of money to a family member before a finance case to `look after’ until it’s all over.
There are ways of dealing with this – an example being going through bank statements and asking searching questions like `Where is the £500 a month you’ve been transferring out of the account going?’
But the point is that everything including pensions go `into the pot’ or it should do.
The form used to include everything is the `Form E’. It adds up the value of everything and takes into account debts. The end of the form includes a section that has a `grand total’ of absolutely everything. This includes the pension.
The court will want to know what you actually want and you ned to make that clear very early on.
The value of the pension will be included. It may be that you want the pension itself, or a share of it. It may be that you don’t want the actual pension at all, but for it to be factored in when it comes to stuff like dividing how much of the equity of the house you get. Or clearing debts. Or something else.
How does the court divide assets?
As I say in the previous paragraph, what you want matters. What your ex spouse wants also matters.
In an ideal world, you’ll both submit your Form E’s with all the information being complete, you both agreeing that the figures on them are accurate and then you’ll agree how to deal with it all – with the court making an order by consent. This does happen – and it keeps the legal bill down to a fraction of the cost of what it wouldn’t be if you fight it out and take part in a long, drawn out case taking years, with spiralling legal bills caused by countless emails/letters being sent, multiple hearings that last several days at a time (although it will be far cheaper if you represent yourself).
Some general `rules’. The court will:
- Be interested firstly in providing for your children (if you have any). The spouse who is the primary carer will need to be able to provide a suitable home for them where ever possible.
- Want a solution where everyone walks away with a home (and not end up sleeping on a sofa or their childhood home) that enable the children (if there any) to have two homes.
- Look for a `clean break’ where ever possible enabling the divorcing couple to have no financial links once the case is over.
- Use the factors listed below.
- Try to accommodate what everyone wants as much as possible.
- Do it as quickly and easily as possible.
Of course, it’s not an ideal world. If the `grand total’ is very low (or negative because the debts wipe out the assets) it may be that it isn’t possible to leave everyone in a situation where they can buy a new home after the sale of the former matrimonial home (if there is one). It’s likely that the expenditure of two households will exceed that one one, meaning there could be a drop in the quality of life for both parties as they struggle to pay for the things they did before the divorce.
The court is extremely unlikely to aware all assets to one ex spouse at the expense of the other however.
What are the factors a court will look at?
The Matrimonial Causes Act has 7 factors a court will look at if it has to work out how to deal with the finances of a divorcing couple. They are:
The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire.
The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
The standard of living enjoyed by the family before the breakdown of the marriage.
The age of each party to the marriage and the duration of the marriage.
Any physical or mental disability of either of the parties to the marriage.
The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family.
The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.
(Note – if a marriage is annulled these factors don’t count though!)
The court will take all of these factors into consideration if it has to make a decision applying them with the appropriate weight while also considering what the parties want where ever possible.
There are no black and whites here – the court will look `big picture’ at all of the above and come up with something that takes all of them into account.
Conclusion
The answer to the question at the head of this blog is a plain `yes’.
But it’s important to say that pensions are just one part of someone’s financial life and just another factor the court will consider if it’s asked to make a decision because you can’t come to an agreement with your ex spouse.
When you say `I want a share of my ex’s pension’ you may really mean `I want a share of the pension’. It may be you want the share of the pension now, a year down the line or when you retire. It may be that you’re prepared to forgo any share of the pension if assets and liabilities can be divided equally in other ways and you decide you’d rather have more equity of the house/a larger lump sum/a smaller share of debts/something else.
The key is to be clear about you seek, the future you would like and what is reasonable considering the assets and liabilities on the table.
This post is for informational purposes only and does not constitute legal advice.
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