Spotlight
Family Court Practice, The
Order the 2021 edition due out in May
Court of Protection Practice 2021
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Spotlight
Latest articles
Family Law Awards adds a Wellbeing Award - enter now
This past year has been different for everyone, but family law professionals working on the front line of family justice have faced a more challenging, stressful and demanding time than most. To...
Perspectives on civil partnerships and marriages in England and Wales: aspects, attitudes and assessments
IntroductionThis article considers the developments since the turn of the century in the provision of new options for same sex and opposite sex couples to formalise their unions with full legal...
Family Law journal - take the survey and you could win £50 worth of vouchers
Do you subscribe to Family Law journal?Our aim is to provide all subscribers of Family Law with compelling, insightful and helpful content that you enjoy reading and find useful in your...
Commencement date of 6 April 2022 announced for the Divorce, Dissolution and Separation Act 2020
The Ministry of Justice has announced that the Divorce, Dissolution and Separation Act 2020 (DDSA 2020), which received Royal Assent on 25 June 2020, will now have a commencement date of 6 April 2022....
HMCTS blog highlights the use of video hearing due to COVID-19
HM Courts & Tribunals Service has published a blog detailing the impacts of coronavirus (COVID-19) on hearings. Pre-pandemic, HMCTS states that the use of video technology for live participation...
View all articles
Authors

Divorcing where there’s a UK-based pension? Act now!

Sep 8, 2020, 12:40 PM
Slug :
Meta Title : Divorcing where there’s a UK-based pension? Act now!
Meta Keywords :
Canonical URL :
Trending Article : Yes
Prioritise In Trending Articles : Yes
Date : Sep 8, 2020, 12:40 PM
Article ID :

In recent years, there has been an increasing number of people moving abroad from the UK, with Australia and New Zealand being the most popular destinations. Whether these expats are motivated by family reasons, a sunnier climate, employment or retirement, there is no denying a growing trend in emigration from the UK. In fact, a BBC report suggests that an estimated 5.5m British people live permanently abroad – almost one in 10 of the UK population. In addition, many foreigners come to the UK and may live and work here for many years, building up an asset base, before returning to their country of origin.

From a legal perspective, difficulties can arise when parties divorce overseas, but still have assets based in the UK. Most commonly, parties have lived and worked in the UK for a number of years, whilst also contributing to English-based pensions. They then seek to rely upon a foreign divorce settlement to implement the pension sharing of an English-based pension (often by consent between the parties). However in reality, most English pension schemes will only give effect to a pension sharing order made by an English Court.

Under Part III of the Matrimonial and Family Proceedings Act 1984, the English Court has jurisdiction to hear cases where parties are seeking financial relief after an overseas divorce, if one party is domiciled or resident in England, or either party has a beneficial interest in a matrimonial home in England. However, it may come as a surprise to many, that if the parties have moved permanently abroad and have no intention to return to the UK, they are unlikely to still be considered as domiciled or resident here.

Therefore, if none of the conditions regarding domicile, residence or ownership of property apply, the parties’ only option is to show that the court has jurisdiction to ultimately make a required pension sharing order under article 7 of the EU Maintenance Regulations, known as the ‘Forum of Necessity.’ This essentially means that where no other EU member state has jurisdiction, the court of any member state may, on an exceptional basis, hear the case so long as there are sufficient connections to that member state.

If the jurisdiction requirement is satisfied, an application can be made to the Court for an order by consent under Part III of the Matrimonial and Family Proceedings Act 1984 for financial provision following a foreign divorce. The order can specifically relate to a pension sharing order being made in relation to the party’s interest in an English pension scheme. The ‘exceptional’ requirement of the EU Maintenance Regulations is fulfilled on the basis that – otherwise -there would be no jurisdiction to make a pension sharing order and the connection with the UK is sufficient in that the asset to be dealt with is based in the UK. It is also worth noting that the application under the EU Maintenance Regulations must be on the basis of the parties’ needs , rather than sharing. This could be shown by (for example) evidencing that the party who is to benefit from the pension sharing order would otherwise have inadequate financial provision upon retirement.

However, there’s another catch. The UK formally left the European Union at the end of January and there are now less than six months left to negotiate and agree a trade deal with the European Union, with the current transition phase due to end on 31 December 2020. At the end of the transition phase (subject to any extensions), the EU Maintenance Regulations are unlikely to be applicable in the UK. Formal applications under the EU Maintenance Regulation are now time-dependent and should certainly be considered well in advance of 31 December 2020. As a divorcing couple, if you live abroad and still have pensions based in the UK, it is time to seek advice from a specialist family law solicitor in the UK; if proceedings aren’t brought swiftly, it may end up being impossible for certain former spouses to benefit from their ex’s UK pension, which would have otherwise been appropriate. 

Categories :
  • Articles
Tags :
  • divorce and pensions
  • Pensions
Authors
Product Bucket : Finance (Adult)
Load more comments
Comment by from