Is there a timeframe in which my ex spouse can make a claim against my pension?
8th January 2024
A common point upon which we as Matrimonial Solicitors advise, is in relation to whether an ex-spouse can still make a claim upon your Pension even though you have been separated for a number of years – The answer to this is yes. Despite the fact that you and your ex-spouse may have separated some ten or fifteen years ago, if you remain married and have simply not yet got round to dealing with the divorce then your financial claims against one another including against one another’s Pension Funds remain live.
For some this may not be a huge issue as any pensions you may have may be insignificant or may have been frozen years previous however, for others who have continued in their employment and particularly if they have public sector pensions such as with the NHS, Teachers Pension Scheme, the MOD (Military) or indeed the Police then those pensions can be extremely valuable.
An important case dealing with this issue was decided in 2020 which has now paved the way as to how we approach this issue. The case confirmed that setting aside the amount of a person’s Pension which accrued pre marriage or post marriage, is inconsistent with the way in which non matrimonial property is treated in divorce. Most divorce cases will be needs cases which means that the focus will be on the needs of both husband and wife rather than on arguments as to who contributed what. It is important therefore to appreciate that in needs cases the timing and source of the pension savings is not necessarily relevant. What this means in simple terms is that in reality the whole of your pension could be taken into consideration and open to division between you and your ex-spouse regardless of when it was accumulated. Therefore, if you and your ex-spouse have been separated for 15 years but have not yet divorced then the amount of your pension which has built up over that 15 year period could also be open to division between you and your ex-spouse upon divorce.
In many cases that we deal with Pensions may be the largest asset or at least the second largest asset and for those who hold that Pension fund they can be extremely reluctant for any of that pension fund to be shared with their ex-spouse. It is therefore vital that individuals obtain legal advice as soon after the parties have separated as possible in order that they are aware of all of the implications.
Article written by Natasha Abel.