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When a couple divorces, the division of pensions can be a complicated process. In this complete guide I'll teach you everything you need to know about pension sharing orders, including:
- What is a pension sharing order?
- How do they work?
- What are the alternatives?
Let's take a look...
What Is A Pension Sharing Order?
A pension sharing order is a court order that instructs a pension provider to divide a pension pot between two people. This usually happens when a couple divorces and they need to divide any pensions that they have built up during the marriage.
A pension sharing order can only be made by a court, and will set out what percentage of the pension will be awarded to either spouse.
How Does A Pension Sharing Order Work?
A pension sharing order (or "PSO") is made by the court, and will set out what percentage of the pension should be awarded to each spouse. The pension provider will then divide the pension pot accordingly.
There are two way to get a pension sharing order:
- Agree between yourselves how to split the pension, and ask the court to approve your decision.
- Ask the court to decide how to split the pension, if you can't agree between yourselves.
Couples can often agree how to split the pension pot between themselves, usually as a part of an agreed divorce settlement negotiated on your behalf by your solicitors or a <bloglink>divorce mediator.<bloglink>
If this is the case, then the court can <bloglink>approve the agreement<bloglink> and make the legally binding pension sharing order.
If you can't agree between yourselves, then you will have to ask the court to decide for you. This is often completed as part of an overall contested divorce settlement, where the court needs to divide all the marital finances, such as the <bloglink>family home<bloglink> and other assets.
When deciding this, the court will take into account a number of factors, including:
- The value of the pension
- How long the couple has been married
- Each person's age and health
- Each person's income and ability to support themselves in retirement
- The needs of any dependent children
Once the court has made a decision, they will issue a pension sharing order which is then sent to the pension provider. The <bloglink>pension provider<bloglink> will then divide the pension pot in line with the court order.
How Is The Pension Divided?
The pension will always be split between you in terms of a percentage.
Eg. if the pension is worth £100,000 and the court orders that it should be split at 50% each, then each person would get £50,000.
It's not possible for the court to order a fixed sum to be paid from the pension pot (eg £75k) because the pension value changes over time. Therefore, the division will always be expressed as a percentage.
If the court are to decide what the percentage will be, they will try to achieve fairness. This can often mean a 50/50 split is taken as the starting point, but there may be a number of factors that mean it's fair for one person to get more or less.
To learn more abut how the court determines what a fair divorce settlement should be, check out my separate guide on divorce settlements:
How Is The Pension Valued?
The pension sharing order will give a percentage of the pension to the receiving spouse, but how is the pension valued in the first place?
As pensions can be quite complex, it's best to get professional help when valuing a pension for divorce purposes. This will ensure that you understand all the features and benefits of the pension, as well as any pension enhancements that may have been made, such as voluntary contributions.
A <bloglink>pension actuary<bloglink> will carry out the valuation and produce a report which can then be used in negotiations or submitted to the court. The pension actuary will take into account things like:
How Does a Pension Sharing Annex Establish a ‘Clean Break’?
Many couples often prefer pension sharing orders over other types of post-marriage or post-partnership pension arrangements. This is because PSOs allow for a clean break between the former couple.
- The transfer values are calculate shortly before the making of the final pension sharing order.
- On the day of the transfer, value is stipulated in the financial settlement: meaning that one partner will receive a percentage out of the other’s pension fund.
The benefits of such an arrangement is that, once the court has issued a PSO, you and your partner have no reason to communicate further. Your partner’s pension scheme administrator will handle correspondence from there on.
This allows both the partners to exit their marriage or partnership with a clean financial break.
Keep In Mind:
A financial advisor will guide you through the process but there are a few things you might want to keep in mind about a PSO:
- Some of the transfer value may be incorporated into a partner’s subsequent pension scheme, or given away as matrimonial income.
- A court’s ruling may be different from the value that you and your ex-partner have mutually agreed upon.
- The court can also include in the transfer value the costs of the calculation and administration of the pension order.
Do I Need To Get My Own Pension Provider?
In a pension sharing order the amount awarded to the receiving party is called the "pension credit".
If you are awarded a pension sharing order as part of your divorce, then you will need to set up your own pension with a pension provider and pay in the pension credit, as your ex-partner's pension provider will not be able to keep paying into their pension pot on your behalf.
You can either use the money that forms the pension credit to start a new pension altogether, or you can transfer the pension credit to another pension that you already own elsewhere.
The paying party keeps the old pension.
When the pension sharing order has been implemented, you can ask your pension provider, or pension scheme, for a statement of your benefits.
What Are The Pros and Cons Of A Pension Sharing Order?
Pension sharing orders are often the simplest and preferred solution by divorcing couples. Usually, the pros outweigh the cons – especially the fact that a PSO will establish a clean break between the two parties.
However, there are a number of pros and cons to pension sharing orders, which you should consider before making a decision.
- You will each have your own pension pot, which can be used to provide an income in retirement.
- A pension sharing order can be tailored to meet your specific needs and circumstances.
- It provides a clean break.
- A pension sharing order can be complex and time-consuming to set up.
- You will need to pay for legal and/or financial advice to get a pension sharing order.
- PSOs are not available for every type of pension (see below).
- For high earners, the pension credit could affect the recipient’s lifetime allowance by increasing their pension provision.
Which Pension Types Are Eligible For Pension Sharing Orders?
Not all pension schemes are eligible to be included in a pension sharing order. Here’s a list of those eligibilities:
Will I Need To Go To Court?
Yes- If you want to get a pension sharing order, you will need to go to court. This is because pension sharing orders can only be made by a judge, and your pension provider cannot divide, transfer, or share your pension without a court order.
So, even if <bloglink>your divorce is amicable<bloglink> you will need to go to court to obtain a pension sharing order
What Is The PSO Process?
The process for obtaining a pension sharing order isn’t as complicated as you might expect. Here’s a run-down:
1. Applying for Financial Remedial Proceeding (Form A)
First, you (or your solicitor) apply for Financial Remedial Proceedings after you've begun <bloglink>formal divorce proceedings.<bloglink>
To initiate this, the person applying for the pension scheme order, that is not the pension fund member, will be asked to fill out <bloglink>Form A.<bloglink>
If the ex-partners cannot agree on the terms by themselves, a financial advisor is assigned through the court.
2. Applying for a Cash Equivalent Transfer (Form E)
Before the first court appointment, both parties or their financial advisor will have to submit <bloglink>Form Es<bloglink> – a document that showcases the value of the pension pot in terms of cash: also known as the Cash Equivalent Transfer Value or CETV.
The pension pot does not include just one pension scheme – a pension fund member can actually receive multiple pension schemes. If that’s the case, then the recipient will have to declare all of those plans to the court during the PSO process.
The court will ask the advisor about the CETV, which is needed on the day of the divorce as well.
In some cases, the court may ask the pension provider to submit a <bloglink>Form P<bloglink> which regulates the terms of the pension sharing order. However, the form might not be needed if both the partners agree to the terms set by the court or by their financial advisor.
3. In Case of An Appeal
If either partner is dissatisfied with the outcome, they can appeal the court’s order no later than three weeks after a court has issued the financial agreement.
The right of appeal is not automatic, and you would need to show that the court has made some error before permission to appeal is granted.
What Documents Are Needed To Set A Pension Sharing Order In Motion?
For a PSO application, the following documents must be submitted three months ahead of the Second Appointment with the court:
- A copy of the sealed financial order
- A copy of the pension sharing annex (setting out details of how you propose the pension should be shared)
- A copy of the <bloglink>decree absolute<bloglink> (if the divorce petition was issued before 6 April 2022) or final order (if the divorce application was issued after 6 April 2022)
- Payment for any pension sharing charges
A pension sharing order takes effect from one of the following three dates: the date of the decree absolute, the date of the final order, or 28 days from when the pension sharing order is approved by the court.
However, be prepared for potential delays – third parties, pension providers, <bloglink>advisors<bloglink>, and courts are often subject to delays, but their input is crucial to complete the process.
What Are The Alternatives To A Pension Sharing Order?
In many cases, pension sharing will be the best option as it allows both parties to keep their own pension pots and have more control over how they are invested.
However, there are other options besides pension sharing annexes for two separating partners. The two main alternatives are:
Which option is best for you will depend on your individual circumstances. You should speak to a financial advisor or solicitor to get expert advice on what is best for you.
What If There’s An Error In The CETV?
If you feel that there’s been an error in the CETV, you need to act immediately.
In the case that a court-appointed advisor or pension provider has made a mistake, you can apply to court to have the mistake corrected. If not, you might have to appeal the court’s initial ruling.
In any case, if the CETV has been under-valued, you will be paid remittance in subsequent payments. If it has been over-valued, you will be asked to pay your former partner's remittance.
What’s The Difference Between Scotland And The Rest Of The United Kingdom In Pension Plans?
Scottish courts are a bit more forgiving with the pension fund member.
While in most United Kingdom jurisdictions, the total pension pot includes pension schemes predating the marriage, Scottish courts do not consider any schemes, values, or annuities that were applied for before the marriage took place.
This usually means that the CETV value issued by Scottish courts is less than those issued by English, Welsh, and Northern Ireland courts.
Can I Claim Pension Benefits Before My Ex-Spouse?
Here’s something you need to know about a pension sharing order – the recipient is not entitled to start receiving pension benefits of the transferor until the transferor themselves are eligible to receive their pension.
Simply put, you can not ask the court to issue your transfer value amount from a pension pot that isn’t being received by the pension fund member – irrespective of age.
Will A Prenuptial Agreement Effect My Pension Rights?
If you have a prenuptial agreement that stipulates what happens to the pensions upon divorce it is likely (though not certain) that the court will uphold those terms. For more details, check out my separate guide on <bloglink>prenuptial agreements.<bloglink>
A pension sharing order is a financial agreement between divorcing parties with the involvement of the court.
A pension sharing order ascribes a cash value, the CETV, to a pension fund member's pension pot, and then calculates a transfer value to be received by their former partner; always stipulated as a percentage.
PSOs provide a clean break and lets partners move on without any further financial squabbles. However, there are other options to explore if a PSO doesn’t seem right for you.