This article was authored by Hero Lomas.
Do you have a pension in England or another part of the UK?
You may be a British expat with a UK based pension, or a foreign national with a UK pension that you acquired during a period of employment in England. Either way, if you choose to divorce outside England, you will find that foreign court orders cannot be used to transfer a pension based in the UK. UK pension providers will only share a pension with a pension sharing order from the courts of England and Wales.
How to obtain a UK Pension Sharing Order
If you live abroad and require a UK pension sharing order, there are two options. Your options depend on whether you have divorced abroad or not.
If you are not divorced:
Where there has not yet been a divorce, your starting point would be to find out if you can divorce in England. If you divorce in England, the English courts can make a pension sharing order by agreement and the process is straightforward. You can read our jurisdiction advice page to determine whether you can divorce in England. You will also wish to consider whether divorcing in England would lead to the best financial outcome for you.
If you are divorced:
If you have divorced abroad, you may have reached a financial settlement with your spouse. This may be in the form of an agreement or a court order. English pension providers will not accept a foreign order or agreement to enable a pension to be shared. An English pension sharing order is required.
How to obtain an English pension sharing order: A Case Study
Expatriate Law recently obtained a pension sharing order for a German national, resident in Canada. The case was referred to us by another firm of family solicitors who recognised the need for it to be dealt with by a firm with international expertise. The couple had divorced ten years ago in Canada. They had agreed a pension share at the time of divorce. Afterwards, the couple were told that the pension share could only be effected with an English court order. The wife contacted Expatriate Law to see if anything could be done. She was worried about her ex-husband's failing health. Although she was receiving 50% of the pension income, if he died this income would have died with him.
As neither party was living or domiciled in England or Wales, jurisdiction was not straightforward. We used jurisdiction for the pension sharing order through Article 7 of the EU Maintenance Regulation entitled 'Forum Necessitatis'. With Brexit looming, this jurisdiction would only be available for a short time and we had to act quickly. A further complication was that the husband, although saying he consented to the pension share, was unwilling to confirm this in writing. We therefore had to issue an application for permission to apply for an order under Part III of the Matrimonial and Family Proceedings Act 1984.
The Court process to Obtain a Pension Sharing Order
We issued the application in the High Court on 31st May 2019 and obtained an expedited directions hearing to ensure that the matter could be dealt with before Brexit. This was particularly important if the application was not going to be by consent. We obtained a hearing date of 22nd July 2019. The husband signed the consent order just five days before the hearing and the High court ordered the pension share at the hearing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. For any further queries or follow up please contact Expatriate Law at info@expatriatelaw.com.
