History of Pension Sharing on Divorce
Before 1996 the only real option for divorcing parties was covered by the Matrimonial Causes Act (1973) where English and Welsh courts were given the power to consider the value of pensions as part of a financial settlement between divorcing parties although they did not have to do so (and many did not). It was usual then for the person with the largest pension to keep it and offset its value against the value of other matrimonial assets e.g., you keep the house, I keep the pension. This is known as clean break/offsetting.
On 1st July 1996, the Pensions Act 1995 came into force that allowed part of a pension to be earmarked for their ex-spouse when retirement was reached. The problem was that the member was still in control of the pension i.e., when to take it and where to invest it. So many aggrieved pensions scheme members simply kept postponing when they took their pension meaning their ex-spouse had to wait to get their earmarked share of the pension or some members even invested the earmarked pension badly to lose money meaning that their ex-spouse received an even smaller share of the pension income earmarked for them.
There were even some earmarking orders worded to earmark only pension ‘income’ or only pension ‘lump sums’ and therefore, some scheme members would take their whole pension as income if the earmarking order had awarded the ex-spouse a share of a lump sum on retirement, so they got nothing or a much reduced earmarked pension income and vice versa, if the earmarking order was for pension income but the member might take the maximum lump sum (not earmarked) to reduce the residual pension income or in some cases, for pre-1987 pension schemes, some pension could be taken all as a lump sum meaning no pension income at all and if the earmarking order was pension income for the ex-spouse then there would be no pension income whatsoever for the ex-spouse.
There was so much trouble to the point that the Welfare Reform and Pensions Act (1999) introduced Pension Sharing i.e., by court order, the pension must be shared immediately between the divorcing couple. Pension Sharing as we know it today started on 1st December 2000.
Whether a financial agreement can or cannot be reached, the courts now have the power to issue a pension sharing order, with the pension professionally valued and then separated into two parts. One share for the member and one for the ex-spouse. The shared pension rights are usually then invested into a separate policy for the ex-spouse in their own name.