These FAQs are for financial advisers only. They mustn’t be distributed to, or relied on by, customers. They are based on our understanding of legislation at the date of publication.Thu Jun 07 09:39:00 BST 2018 Back to results
Pension sharing was introduced on 1 December 2000 and allows a member’s pension savings to be split at the point of divorce, or annulment of marriage, and dissolution or annulment of a civil partnership. For the remainder of these FAQs, to keep things simple we’ll refer to all of these ways of ending a marriage or civil partnership as ‘divorce’.
It allows for the physical split of a member’s pension entitlement so that part, or all, of it is transferred to their ex-spouse’s or ex-civil partner’s pension arrangement. Therefore, it’s said to allow a ‘clean break’ to be achieved at the point of divorce. The reduction in the member’s benefits is known as a ‘pension debit’, and the amount allocated to the ex-spouse or ex-civil partner is known as a ‘pension credit’. The ex-spouse or ex-civil partner will often transfer the pension credit to a new or existing pension arrangement but, if occupational scheme trustees offer the option, the credit can be left within the member’s scheme.
When dealing with pension sharing orders, a pension provider or scheme trustees may have to correspond with the member and their ex-spouse or ex-civil partner plus the solicitors and financial advisers for both parties.
Pension sharing can apply to all types of private pension arrangement, occupational and personal, registered and non-registered as well as to pensions already in payment. State pensions can be shared in certain circumstances depending on when divorce proceedings begin and on the State pension entitlements accrued. More detailed information can be found at:
For pension sharing, the prescribed valuation method is the cash equivalent transfer value (CETV). However, in certain circumstances, one of the parties may argue for a different value to be used.
There are two different types of valuations for pension sharing. An information valuation is used by the court and the divorcing parties to help decide on how to share assets. An implementation valuation is used when a pension sharing order has been made and all the requirements to make the transfer from one pension arrangement to another have been received.
In Scotland, only the value of the pension which has been built up during the period of the marriage or civil partnership up to the date of separation (or the date the court summons is served) should be taken into account. The solicitors acting for the parties will calculate this as part of the divorce settlement.
There are set timescales for providing valuations and information relating to the pension sharing process.
In England and Wales, a pension sharing order must be issued by the court and should be accompanied by a pension sharing annex (a form P1) for each pension arrangement that is to be shared. An annex should quote, amongst other things, the provider name and reference number of the pension arrangement the share is to be taken from and the percentage to be shared.
In Scotland, pension sharing can be achieved either through a pension sharing order made by the court or a corresponding provision in a qualifying agreement. A qualifying agreement (which is the more common method) is a written financial agreement between the two parties which is usually drawn up by their legal advisers, that is registered in the Books of Council and Session. An order or agreement should quote, amongst other things, the provider name and reference number of the pension arrangement the share is to be taken from and can quote the percentage or amount to be shared.
An order or agreement should not quote the date the share is to be made on.
All private sector occupational schemes and personal pension schemes must offer the option of transferring the pension credit externally to an arrangement chosen by the ex-spouse or ex-civil partner. Most scheme administrators and trustees will prefer this option. This may mean the ex-spouse or ex-civil partner choosing between transferring their share into a new arrangement (such as a personal pension) or transferring the pension credit into an arrangement or scheme that they are already a member of. After the pension credit has been transferred to the ex-spouse’s/ex-civil partner’s pension arrangement, whether the benefits can start to be taken will depend on their age at that time. The payment of benefits from the pension credit is not linked to the original member’s age.
The only schemes that have to offer an ex-spouse or ex-civil partner membership in the member’s scheme are unfunded public sector schemes or final salary schemes which are not fully funded. In this case, if the ex-spouse or ex-civil partner chooses an external transfer instead, they will be quoted a reduced CETV.
At their discretion scheme trustees may offer an ex-spouse or ex-civil partner their own benefits within the member’s scheme as an alternative although this is unlikely to be the preferred option. From the ex-spouse’s or ex-civil partner’s point of view it may not feel like a ‘clean break’ if they become a member of their ex-partner’s pension scheme.
A pension credit is not treated as a contribution against the annual allowance for either the ex-spouse or ex-civil partner.
When they receive a pension sharing order, the scheme administrator/trustees have 21 days to:
- issue a notice of implementation, or
- explain why they cannot proceed with the implementation and ask for further details, or
- where there are charges (and it has previously been specified that they must be paid before the order is implemented) ask for payment to be made first.
Once they have received all the information required or any requested payment they must implement the order within four months. Please note that for Scottish cases the scheme administrator/trustees must receive all information and documents within two months from the date of the extract of the decree or other judicial declaration responsible for the divorce, otherwise the order will be deemed never to have taken place. However, an application can be made to the sheriff to make an order to extend this two month period, even where it has already expired.
In prescribed circumstances, the Pensions Regulator may agree to the implementation period being extended for occupational pension schemes.
Once a pension share has been completed, notifications must be issued to the scheme member and to their ex-spouse or ex-civil partner within 21 days of the transfer. These notifications must contain prescribed information.
How is a protected tax-free lump sum affected by pension sharing?(Expand content) (Minimise content)
Where a member has a protected tax-free lump sum of more than 25% and their pension arrangement is subject to a pension share, the protected tax-free lump sum is not reduced as a result of the pension debit.
One issue to watch out for is where the value of the fund after the pension debit falls below the amount of the protected tax-free lump sum amount. Unless the protected tax-free lump sum was a stand-alone lump sum, then it would not be possible to take the whole of the fund as a lump sum. HMRC’s stance is that some part of the fund must be used to provide a pension on the basis that when you pay a pension commencement lump sum (PCLS) you must also provide a pension or drawdown. In practice, there could be a need to set aside part of a fund to provide a pension or income with the balance being paid as a tax-free lump sum.
A similar situation applies for stand-alone lump sums. If a pension debit is made from an arrangement that could be paid as a stand-alone lump sum, the remaining fund can still be paid as a stand-alone lump sum to the member.
An ex-spouse or ex-civil partner who receives a pension credit does not benefit from any protected tax-free lump sum or stand-alone lump sum that applied to the member’s funds. In other words, an ex-spouse or ex-civil partner would be limited to a maximum of 25% as a tax-free lump sum from a pension credit that originated from uncrystallised funds.
This includes pensions that are being paid direct by final salary schemes. Where an annuity is to be shared with the ex-spouse or ex-civil partner, the original annuity will need to be ‘unbought’ and a current value placed on it. Depending on the scheme administrators/trustees’ decision, the current state of health of the annuitant may also be taken into account as the situation may have changed significantly since the original annuity was calculated.
Where pension sharing does go ahead, the ex-spouse or ex-civil partner will generally transfer the pension credit to a pension arrangement in their own name. Whether benefits from the pension credit can come into payment immediately will depend on the ex-spouse’s/ex-civil partner’s age. In other words, the fact that the original member was already in receipt of a pension doesn’t matter, the pension credit can only come into payment if the ex-spouse/ex-civil partner has reached normal minimum pension age (currently 55) or has met the ill-health condition.
The money purchase annual allowance isn’t triggered if an ex-spouse/ex-civil partner starts to take income from a flexi-access drawdown fund that is wholly derived from a disqualifying pension credit.
Can a tax-free lump sum be paid from a pension credit that originated from a pension in payment?(Expand content) (Minimise content)
No, where a pension credit is derived from a pension in payment or a drawdown fund, it is not possible for the ex-spouse or ex-civil partner to receive a tax-free lump sum when they eventually take pension benefits from the pension credit payment. The reason for this is that it is assumed that a tax-free lump sum would have been paid to the individual holding the pension in payment or drawdown fund when the pension or drawdown was set up.
It's not possible to take an uncrystallised funds pension lump sum (UFPLS) from an arrangement that has a disqualifying pension credit.
What happens if a pension share is made from a capped drawdown fund?(Expand content) (Minimise content)
Individuals in capped drawdown should be aware that any pension debit could have a significant impact on the maximum income that they can take.
If someone is under age 75 and their fund reduces following a pension debit, then there should be a review of the maximum income limit for the remaining years of the review period. The income limit should be recalculated on the day the pension sharing order takes effect using the remaining capped drawdown fund and the individual’s age at that time. However, the reduced maximum income limit does not take effect until the start of the next pension year in the review period.
It follows that a review of the income limit would not be carried out if the pension debit is made in the final pension year of the review period. In this scenario, the income limit would be reviewed as normal once the review period has expired. Similarly, if a pension debit is made from a fund belonging to someone aged 75 or over, then the income limit would need to be reviewed as normal on the next annual review date.
A foreign court has no jurisdiction to make a pension sharing-type order against a UK pension arrangement. If a couple are getting divorced overseas and they wish to share the benefits held under a UK pension arrangement, they need to obtain a pension sharing order from a UK court. The relevant court order would need to be made under Part III of the Matrimonial and Family Proceedings Act 1984 (or the equivalent Scottish legislation) and follow the usual format of a UK court order, quoting the UK plan number and the relevant percentage or amount (Scotland only) to be shared.
If the ex-spouse or ex-civil partner is living overseas at the time of the divorce, and they do not have an existing UK pension arrangement, they may have difficulty setting up a new UK pension arrangement to accept their pension credit. An alternative option could be to transfer the pension credit direct to a qualifying recognised overseas pension scheme (QROPS).
What happens if a member or their ex-spouse dies before a pension share is implemented?(Expand content) (Minimise content)
The two scenarios that could occur are:
- The member dies after the court order has been finalised but before the pension share is implemented – generally the pension credit is deemed to exist and the transfer to a pension arrangement for the ex-spouse or ex-civil partner should continue to be processed.
- The ex-spouse or ex-civil partner dies after the court order has been finalised but before the pension share is implemented – generally, the ex-spouse or ex-civil partner will be treated as having benefits within the member’s scheme. Death benefits would then be quoted and settled based on the rules of the scheme or contract.
What effect does pension sharing have on the lifetime allowance?(Expand content) (Minimise content)
A member of a registered pension scheme will see the value of their pension savings reduce following a pension debit. They may want to address that and the options available will depend on whether a member is able to make larger pension contributions to cover the debit made. Anyone with an existing fund protection option will also need to take into account the effect a pension debit may have. This is covered in more detail below.
For pension credits received before 6 April 2006, it was possible for an ex-spouse or ex-civil partner to register for an enhanced lifetime allowance. If this was applied for, it allows an ex-spouse or ex-civil partner to take benefits up to the value of the pension credit plus their own lifetime allowance without having to pay a lifetime allowance charge. An application to benefit from this enhanced lifetime allowance had to be made to HM Revenue & Customs (HMRC) by 5 April 2009. The enhancement factor would have been calculated using the lifetime allowance of £1.5 million from 2006/07.
Please note that the enhancement could not have been applied for if the ex-spouse or ex-civil partner had registered for primary protection.
Anyone who receives a pension credit on or after 6 April 2006 has to count its value against their own lifetime allowance. There are four possible scenarios which are:
1) The ex-spouse or ex-civil partner does not have any fund protection on their pension benefits prior to receipt of the pension credit. The addition of the pension credit could reduce scope for future pension funding by the ex-spouse or ex-civil partner or could push the value of their benefits above the lifetime allowance.
2) The ex-spouse or ex-civil partner has primary protection, individual protection 2014 or individual protection 2016 on their pension benefits prior to receipt of the pension credit. No increase in the personal lifetime allowance can be made with the addition of the pension credit. So, the total value of the increased benefits would be tested against the ex-spouse’s or ex-civil partner’s personal lifetime allowance.
3) The ex-spouse or ex-civil partner has enhanced protection, fixed protection 2012, fixed protection 2014 or fixed protection 2016 on their pension benefits prior to receipt of the pension credit. The addition of the pension credit would not result in the loss of fund protection if applied to an existing money purchase arrangement. However, if the pension credit was put into a new money purchase arrangement for the ex-spouse or ex-civil partner, then fund protection would be lost.
4) The ex-spouse or ex-civil partner receives a pension credit that has arisen in whole or in part from a pension which has come into payment on or after 6 April 2006. It is possible in this situation for the ex-spouse or ex-civil partner to apply to HMRC for an enhancement to their lifetime allowance. The reasoning behind this is that there will already have been a test against the member’s lifetime allowance when benefits came into payment. The application for an enhancement factor to HMRC must be made within five years of the 31 January following the end of the tax year in which the pension credit is received. This enhancement can be applied for using the HMRC form APSS201. The date the enhancement factor is or was applied for will determine how it is treated when calculating a person’s available lifetime allowance.
A member who has primary, enhanced, fixed (either 2012, 2014 or 2016) or individual protection (2014 or 2016) may later divorce and, under a pension sharing order, share their pension with their ex-spouse or ex-civil partner. It will depend on what type of fund protection is held as to what happens to the remaining benefits after a pension debit has been made.
Enhanced protection, fixed protection 2012, fixed protection 2014 and fixed protection 2016
A deduction for a pension debit will not result in the loss of the enhanced or fixed protection and the remaining benefits will continue to be protected. If an individual decides to make further pension savings to build up their funds again after the debit then the enhanced or fixed protection would be lost.
Primary protection, individual protection 2014 and individual protection 2016
The value of the protected benefits will have to be recalculated as a result of the pension debit. A scheme member should notify HMRC when they become subject to a debit and this could result in their personal lifetime allowance being re-calculated or in the primary protection or individual protection being lost (if the remaining personal allowance goes below £1.5m for primary protection, £1.25m for individual protection 2014 or £1m for individual protection 2016).
The following table summarises the position with pension debits and credits pre- and post 6-April 2006:
|Pension sharing order made:||Before 6 April 2006||On or after 6 April 2006|
Can be ignored when testing against lifetime allowance post-5 April 2006. Could be ignored when calculating value for fund protection at 5 April 2006.
(Note - debit still needed to be taken into account when calculating Revenue limits at 5 April 2006).
Not tested against annual allowance or lifetime allowance.
Client with primary protection, individual protection 2014 or individual protection 2016 - value of protected benefits needs to be re-calculated if debit made.
Client with enhanced or fixed protection - debit will not result in loss of protection.
|Credit||Possible to apply to HMRC for increase in lifetime allowance unless primary protection is held.|
Not tested against annual allowance.
Should be tested against lifetime allowance. Enhancement to lifetime allowance available if credit is from a pension in payment.
There is some HMRC guidance covering the general principles of pension sharing at:
Pensions Technical Services