Pensions from before the marriage are considered marital assets according to my solicitor (Scotland) 2nd opnion sought

[KirstyWirsty]

Hi

Trying to get a legal separation drawn up (it has been a year so far) and pension valuations are finally in.

I have worked for my current employer for the whole period of the marriage 7 years and also worked for them previously from 1995-1998.

My solicitor says that my 95-98 pension is also a marital asset .. Here is what she told me

Each pension that you have is apportioned pro rata for the period of the marriage whether taken out before the marriage or not. If you only have one there is only one to be apportioned to the period of the marriage. If you have more than one they are both apportioned to the period of the marriage. In my view it is inequitable in situations like your own. It?s not what we like but the courts have decided that that is how the Act is to be interpreted so if the other side know this and insist on it we will have to follow it. No period is taken into account from before the marriage for him or you. The essence is that although you had the pension before you were married you still have it ie through your marriage you have also had it albeit not paid into it They therefore do the same apportionment with only the period of the marriage being counted thus resulting in a lower figure because of the length of time of the pension. The period before the marriage is not counted for any of the apportionments

I am confused? Anything else I had prior to the marriage is not a marital asset so why would this be the case?

A second opinion would be most welcome

The way pensions in Scotland are apportioned on divorce is rather a blunt instrument buts its quite straightforward.

The relevant date for valuing the total pension is usually the date of separation.

This figure is then divided by the total number of years contributions were made to to the pensions fund.

Once you know how much is apportioned to each year you multiply that number by the number of years contributions were made during the marriage.

For example if the total value of the fund is £100k you would divide by the number of years contributions were made, say 20 years. That would give you a figure of £5k which is then multiplied by the number of years contributions were paid during the marriage. If you were married for 20 years but only paid contributions in 10 of those years you would multiply £5k by 10 = £50k apportioned to the marriage.

Your solicitor is quite correct, the way pensions are apportioned is written down in stone.

See the Divorce etc. (Pensions) (Scotland) Regulations 2000;

www.legislation.gov.uk/ssi/2000/112/regulation/4/made

Thanks STIDW

STIDW I have just had a re read and I didn't pay ANY contributions to the pension that I had before the marriage during the marriage itself!

Does that change things?

Anyone??

Unless there are any Scottish solicitors who post here you're better off asking your own solicitor about the legislation. If you're unhappy with their advice you can always seek a second opinion.

I've asked for a 2nd opinion will let you know when I get it thanks

My understanding is that the relevant dates are from date of marriage to date of separation ie any contributions made prior to the date of marriage would not be considered a marital asset - am not a lawyer but do work in this area for a scottish firm.