Separated But Not Divorced – Can I Claim Some Of My Spouse’s Pension?

We have previously covered how pensions are divided in a divorce financial settlement, however, what happens in situations where a couple has separated but never actually divorced?

The first thing a family law solicitor will ask in this type of situation is whether you and your estranged spouse have a separation agreement in place or have been granted a judicial separation.

What is a separation agreement?

Separation agreements are rare, however, for separated couples who do not wish to divorce on religious, cultural, or personal grounds, they give legal certainty as to how property and assets will be divided upon separation.

A separation agreement is different from a post-nuptial agreement as the latter is made by a couple intending to remain married, with the former only created when separation is imminent.

It is imperative to understand that a separation agreement cannot exclude the court's jurisdiction in financial remedy proceedings upon divorce. Either party can apply to the court for financial orders and request the court to ignore or modify some, or all, of the terms of the separation agreement. Converting the agreement to a court order is the only way to prevent one party from challenging it.

Notwithstanding the above, a separation agreement will normally be upheld by the courts if both parties received independent legal advice and the agreement was reached immediately before the couple separated. Circumstances that may result in a separation agreement not being upheld include:

• One of the parties has experienced a change in circumstances that means the financial solutions set out in the agreement are "manifestly unjust".
• The agreement fails to make adequate provisions for a child of the family.

You can stipulate in a separation agreement whether you wish to divide your pension by:

• Pension offsetting
• Pension attachment
• Deferred pension sharing
• Deferred lump sum

You can read about these options in detail here.

Whether there is a legal separation in place is another factor a family law solicitor will need to consider when it comes to pension division.

What is judicial separation?

Under the Divorce, Dissolution and Separation Act 2020, section 2, one or both parties can apply for a judicial separation. Upon application, the court must grant the order and there is no longer any requirement to provide reasons for the separation.

Although the court can make financial orders following a judicial separation, it cannot grant a pension sharing order because the parties are still technically married. This is a serious disadvantage of judicial separation when compared to a divorce and one that should be considered carefully with the advice of an experienced family law solicitor.

Although it cannot make a pension sharing order the court has the power to redistribute the benefits derived from pension resources between the parties by:

• Making one or more pension attachment orders, and/or
• offsetting the value of pension resources against the value of other assets held between the parties

Remember, there is nothing to stop people who have acquired a judicial separation from divorcing at a later date.

How is a separation financial settlement negotiated?

When negotiating your financial settlement, your solicitor will listen to what you need in terms of money, pensions, and property to move on to a positive future. They will then correspond with your spouse’s solicitor and negotiate for what you want. If a dispute develops, they will do everything possible to resolve matters through alternative dispute resolution methods such as round-table negotiation and/or mediation rather than going to court which, due to the cost and emotional stress involved, is always the last resort.

Your pension rights are likely to form a significant part of your financial settlement negotiations following a judicial separation. Your solicitor will ensure that your spouse makes a full financial disclosure concerning their pension assets. If you believe they may not be fully disclosing their pension/s it is important to inform your solicitor of your doubts so they can look at uncovering the truth. This can be achieved through the use of forensic accountancy and applications for injunctions to prevent your spouse from disposing of pension rights and other assets to avoid them becoming part of the financial settlement.

Wrapping up

Ensuring you have an adequate pension is an essential part of planning for your future. If you have decided to separate rather than divorce, you must talk over your options with a family law solicitor. Depending on factors such as your age and circumstances, it may be more advantageous for you to separate and remain married rather than divorce in order to maintain certain pension rights.

For a free consultation regarding any legal matter relating to separation and pension rights, please call our understanding and caring family law team on 0208 300 6666.