Pension Related Court Orders - Beware!
23 December 2015
For divorce petitions issued after the 1st December 2000 it has been possible for a spouse to seek a Pension Sharing Order but there are a number of factors which are not so well known.
Did You Know?
If your Court Order provides for you to pay maintenance to your ex-spouse then for so long as that Maintenance Order is in place, it is open to either spouse to apply back to the Court for a variation of the payments.
If such an application is made then the Court has a duty to consider whether:
- The variation should occur and if so;
- Is it possible to capitalise the maintenance (this is where the Court will order the paying spouse to pay their ex-spouse a lump sum rather than on going monthly maintenance payments.
What many people do not know is that instead of a lump sum order the Court could award their ex-spouse a share of their pension (although it is not possible to make a second Pension Sharing Order against a pension which was shared in the first set of proceedings).
This is the case even where the original Court Order dismissed the former spouses claims for capital and pension and is effectively a way of getting further capital ‘through the back door’.
The person with the benefit of the pension who finds themselves paying on-going maintenance should consider whether it is to their benefit to continue to contribute to a pension that has already been shared or whether they contribute to a second pension which would be vulnerable to a Pension Sharing Order on a future variation application.
Pensions & Second Divorces
Some client’s finds themselves in a position of having a Pension Attachment Order made against their pension after their first divorce. This requires the pension arrangement to pay death benefits to the client’s first spouse. Whilst the pension sharing attachment is in place it will prevent the spouse in the second divorce from obtaining a Pension Sharing Order against that pension.
There is provision for an application to be made for the discharge of a Pension Attachment Order and if successful this would clear the way for a Pension Sharing Order to be made BUT this application must be made before the death of either party.
The Remarriage Trap
If someone remarried without making a claim for financial remedies most claims are prohibited but not in respect of a Pension Sharing Order.
For more information about Pension Sharing and Pension Attachment see Pension Money Matters in Divorce under Pension Options in Divorce.