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Pension offset
This is the oldest and still the most commonly used method of dealing with pension benefits. The value of the pension assets is taken into account when valuing the couple’s assets. However, each keep their own pension rights, with the value of the pension rights being offset against other assets, such as the couple’s home. The following is a simple example to show how this works.
The ‘husband’ has pension rights valued at £400,000. The marital home is worth £500,000 and the couple have other assets of £100,000.
The divorce settlement may provide for the ‘husband’ to keep his pension rights while all or part of the other assets are passed to his ‘wife’.
This is likely to remain the preferred choice for the majority of couples, particularly as it is perceived as easy and understandable.
Earmarking
This is where all or part of the pension benefits of one of the couple are ordered to be paid to the other, once they come into payment.
Earmarking has not proved at all satisfactory in practice as it does not achieve a clean break. It does not enable the ex-spouse/partner to receive retirement income until the spouse/partner with the pension pot retires as the ex husband/partner still with the benefits still retains all control over the arrangement and can exercise that power of control to deprive the ex-spouse of benefits by controlling the investments or deliberately defer retirement until their 75th birthday.
An even greater drawback is that, if the order is for the regular payment of a pension, those payments will stop when the ex spouse/partner with the pension pot dies. The party who receives the earmarked pension will also lose it on remarriage. Because of this, earmarking orders are relatively rare and Judges will rarely listen to an earmarking request or proposition. Pension sharing
This involves splitting the pension at the time of divorce/dissolution to give both parties their own pension pot for the future, so that there is a clean break.
The ex-spouse/partner’s share can either stay in the existing scheme (if this is an option) or be transferred to another pension scheme of their choice. This could be a personal pension, stakeholder pension or an occupational pension scheme, if the receiving scheme rules allow. Alternatively, a lifetime annuity could be purchased if the ex spouse or partner is aged 50 or over (55 from 2010).
None of the options are mandatory. It is up to the parties and their lawyers and, if necessary, the courts to decide on the best method. The most important point is the calculation of the value of the pension which is very rarely the same as the transfer value as discussed on the next page. .
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