Pensions, Divorce & QROPS

With two fifths of all marriages now ending in divorce and with a growing number of people getting divorced later in life, more and more clients are seeking advice on what happens to their pension pots when a couple splits.

And it is absolutely appropriate and sensible that independent financial advice is sought.

A client’s pension is often the biggest asset in divorce or civil partnership dissolution after the family home, so it is important a financial adviser is highly experienced and qualified to be able to advise in this area.

There are three ways that pensions can be divided during divorce or civil partnership dissolution.

  • Earmarking (also known as Pensions attachment) – The client receives an agreed amount of the ex-partner’s net pension income or lump sum (or both) when it starts being paid to them.  This means the client cannot receive pension payments before the ex-partner has started taking his or her pension.  If the ex-partner is much younger or if they retire much later than the client then they may be forced to wait for several years before being able to receive a share of the pension.  In Scotland, this is called a pensions lump sum order.

Action: In reality few people take this option and should a client be offered this then you should almost definitely recommend against it.  The main issues are:

–       No clean break

–       Ex-spouse can delay taking pension benefits

–       Pension benefits cease when the ex-spouse dies

–       No control how the money is invested

–       Entire pension taxed at the ex-spouses rate of tax

  • Pension offsetting – the value of any pension is offset against other assets.  For instance, you may have a greater share of the family home in return for your ex-partner keeping his or her pension income.

Action: This is a very clean method for both spouses and is certainly a better option than Earmarking, however this may leave a client cash rich and asset poor if they have large pensions.  This is the simplest option for most people.

  • Pension sharing – A percentage share of any pension is awarded to the ex-partner.  This share may be transferred into the clients’ own name, which could be an existing or a new plan.  Or the client may be given the option to join the ex-partner’s pension scheme.  In their own right.

Action: This option is probably suitable for most clients.  It allows clients to retain valuable retirement plans whilst also ensuring a ‘clean break’ from their ex-partner.

In order to be able to split pensions fairly, firstly you must know what they’re worth.  Generally pensions will be split into:

Defined Contribution Pension

–       A defined contribution scheme will ordinarily be simple to value with you being able to call up and get a current value and transfer value of the plan.

Defined Benefit Pension

–       This type of scheme is more complex because the pension benefit is set as annual pension income at retirement based on various factors, including pensionable service, salary and the accrual rate.  If you contact the Scheme Trustees they should be able to provide you with a Cash Equivalent Transfer Value (CETV) within a couple of weeks.  The fact is, a pension scheme must provide a CETV within three months of the date of the request.

State Basic Pension

–       This cannot be apportioned but the ex-spouses National Insurance history can be adopted if this gives a better outcome for a client with no impact on the ex-spouses pension entitlement.  This apportionment will be lost if the ‘adopting’ client remarries.

State Second Pension / SERPS / Graduated Pension

–       Either party to a divorce must obtain a valuation of their entitlement accrued up to the date of divorce.  The valuation as with a Defined Benefit Scheme will be a CETV, a notional sum of money which allows the Court to decide how to apportion the clients’ financial assets.

It could be shared in a financial settlement through a pension sharing order.  This means that the client could be forced to share part of their additional state pension with the former spouse.  If a pension sharing order is made, the additional state pension may either increase or decrease, depending on the decision of the court.

QROPS and Divorce

Qualifying Recognised Overseas Pension Schemes (QROPS) are outside of the earmarking or pension sharing jurisdiction of the UK courts.  In reality, if the courts (and the divorcing client) realise their lack of jurisdictional power they will always have the fall back of reverting to offsetting.  This will only be of use to the courts should the couple’s other assets outweigh that of the overseas pension rights.  And of course if the asset is declared!

Typically, a UK resident may consider setting up a QROPS when they leave the UK to permanently emigrate (or to retire abroad) having built up a pension fund within a scheme approved by HMRC.  The QROPS does not have to be established in the new country of residence, with some of the most popular jurisdictions of choice being Malta and Gibraltar, thus providing greater flexibility and stability, along with choice of scheme provider.  A QROPS is an overseas pension scheme that meets certain requirements set by HM Revenue and Customs (HMRC). A QROPS can receive the transfer of UK Pension Benefits without incurring an unauthorised payment and scheme sanction charge. QROPS were launched on 6 April 2006 as part of new legislation with the objective of simplifying pensions.

Transferring UK Pension assets to a QROPS may be seen by some as a step in protecting assets from a spouse on divorce.  As the law does not forbid a transfer, advisers should ensure that they are not seen to be promoting this or even supporting the activity.  This could be seen as a bi-product of the QROPS market which otherwise offers non-residents an excellent method of continuing to save toward retirement in an efficient manner.

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