Pensions in divorce settlements

[Wtfammaduck]

I’m asking this for my sister. Sorry if it’s long, trying not to drop feed.

My DS and her stbxh have split up but still live in the same house for the sake of their 7 year old son. He lives in their garden room/man cave.

Everything is currently informal while they wait the legally required time to divorce. She has been advised to get a separation agreement by friends but he has persuaded her not to yet and to wait it out to save them both money. It has been so far amicable and with no fault on either party, it’s just run its course. To be fair to him he does pay for all household costs while they are still legally married so all her earnings are her own to do as she wishes.

They both work full time and pay into their pensions but her stbxh earns quite a bit more than her, although they earned the same at the start of their marriage. He only started paying into a pension recently but my sister has been paying into hers as long as she has worked 20+ years and has more in her pension pot than he does.

My DS has now met someone else (not the reason for divorcing) and is worried this could make things more difficult when it comes to the final settlement. This has a bearing on the question as she worries it may make her stbxh vindictive and she’s become fixated on this one thing.

What I am trying to find out for her is, can he claim any of her pension in division of marital assets, even although he currently earns more than she does and pays into his own smaller pension? Would a court not look at his own pension and earnings and see that it would make no sense to divide these and to keep the pensions only to each individual.

Wow.
So he basically lives in the shed but pays for all the costs of the house.
With your sister keeping all her wages to herself.

Is this a reverse? Are you his sister / mum / etc?

She needs to see a solicitor. It may be that he will have some of her pension but she will get more of the equity in the house to provide for a home for her and her son? Could she top up her pension contributions with the money she is saving while he is paying for everything?

He could claim part of her pension, yes.

If she suspects her STBXH could become vindictive if he finds out she is seeing someone I think the easiest thing here would be to keep this information private. There's no reason he has to know about this.

What has she offered him as a settlement so far?

Yes he has a claim to her pension as it is a marital asset. Sone people agree to give up their claim to the others pension in return for a higher proportion of the house or other assets. Can she be discreet about new partner while they negotiate the settlement?

She'll need to find out the cash value of her pension, as will he, when the application for divorce has been made.

I doubt the garden room is much like a shed! But he would have a claim, I'm pretty sure, though it could be negotiated

No it’s not a shed. It had been used for airb&b until they separated and it became his man cave . Has a kitchen and bathroom. Etc.

Not a reverse. They are both happy with the settlement.

All assets are in the pot for distribution so yes that includes the pension

the overall settlement % will depend on many factors

Thanks.

I could be wrong but I don’t think she’s met up with the new man yet, still messaging but it seems to be heading towards meeting up. I have advised her to slow down a bit.

They haven’t really spoke about settlements beyond they’re going to go 50/50 on assets and share the residency of DN on a similar split.They want to leave that stuff to lawyers. It’s all strangely amicable - like no split I’ve ever seen before but I guess that’s what she’s worried about changing.

Which country are they divorcing in?

He'd be able to ask her to pension share. Basically all money gets put into a pot and shared 50/50. It's fair.

Short, uncomplicated answer: yes.
Both pensions will be thrown into the asset pot and split. That’s just how it is. Some couples agree not to touch each other’s pensions.

My unasked for advice is to try and move things along (divorce wise) as fast as possible while amicable and agreeable positions are in place. Time has a way of letting bitterness take over and that amicable divorce can become acrimonious.
Just be honest about relationships. Each party will be asked about this in the form E. In all honesty, the child’s needs takes precedence, so that will help shape what that split should look like.

It’s definitely not all put into a pot and split 50:50

thsts one outcome
and so are many other variables depending on their own circumstances

If she's been able to save into a pension then that's money that could otherwise have been spent during the marriage, such as in reducing a mortgage, so it's fair that the pension accrued is matrimonial and available for division. Same as his is.

Yes each persons entire wealth will be looked at. This includes pensions.

Regarding them waiting for the applicable time before applying to divorce… there is no Time frame.

My husband and I separated in the November. Started divorce application in December, divorce finalised in august

Ex husband I should say

They’re in Scotland and apparently there they need to live separately for a year before they can get divorced because they have a child.

Someone may be able to answer whether a lawyer could do all the paperwork in that time so that come the 12 month mark it’s just a case of having it stamped or whatever they do. It seems awful having to hang around for a year doing nothing.

I don’t claim to know much about Scottish divorces so don’t really know anything other than what she’s told me.

A quickie divorce in Scotland requires no children under 16, so the being separated for a year part is correct (irretrievable breakdown) unless they use unreasonable behaviour as grounds.
Sorry don't know if the legal stuff can get underway beforehand.

Division of sssets is different in Scotland vs England and Wales. Would have been useful to know this

Much higher chance if straight 50:50 if they cannot agree between them

Not clued up on Scottish law but I was in a similar position with my ex husband where I had been paying into my pension where he hadnt but as hes a higher earner and started paying into one late marriage (plus has a military pension) the valuations came out relatively equal. On that basis we agreed to leave the pensions out of it and just split our house. Saved me a massive headache having to deal with solicitors and the military pension. If you can be amicable and agree a split that leaves pensions out of it then it may be worth suggesting it. You just have to show that you have considered all the factors and not been pressured into anything.

I’m not a lawyer. I’m not even in Scotland. 🙄

In scotland it’s only the value of the pension paid in during the marriage

No need for the sarcastic face

I’m not in Scotland but if pensions were part of the settlement, it would be the future value considered, and if he is earning more now, and putting in a %, his future pension pot could quickly outpace hers, so one possible outcome would be the projected value of the two pensions together at age (eg) 65 will be calculated, and then the number of years they were married would be used to apportion out.