Client Question:

My husband and I have been married for 25 years and we are amicably talking about divorcing. We both work and have two children who have grown up and left home.  I always worked, though for some years when the children were young I worked part time.  I have my own pension but it is a lot smaller than my husband’s.  Would I be entitled to some of his pension and if so, would this amount be affected if he married someone else before he claimed his pension?


Brookman’s Answer:

Pensions are important. I handled the leading case which first established the general rules about pension division. First, yes you are entitled to a fair share of your husband’s pension. Until less than 20 years ago, women in your position were seriously disadvantaged by being unable to obtain a pension share. Then the law was changed so that now some or all of one partner’s pension rights can be transferred into the name of the other. However, many people get confused about how to value this.

What my leading case established (Martin-Dye v. Martin-Dye judgment of the Court of Appeal) was that although a pension is given a “cash transfer value”, it is not the same as a here and now asset. The cash transfer value is an actuarial calculation which tells a pension provider company what asset reserve it needs to hold against the likely further liability that it will be carrying by contracting to provide that pension. The pension holder does not have the right to any of that reserve. The pension holder has a contractual right to a stream of income (taxable) starting at retirement age and ceasing on death. Apart from the possibility of withdrawing the tax free allowance, the only asset that ever accrues to the pension holder is the stream of income, which most people would not really regard as an asset. (Unless under the new rules, the holder opts to take entire sums at the cost of the full taxation hit.)

That is why pension sharing is generally calculated by adding both sets of cash transfer values to look at the overall actuarial figure, and then looking at the percentage that needs to move from one partner to the other to achieve the desired outcome. Generally the desired outcome is that both should have the same income in retirement. However whether that is the desired outcome depends on age, the different life expectancies between men and women, how close each is to retirement and many other variables.

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