It was widely reported in the press last week that a man has won a land mark ruling which will give his husband the same pension rights as a wife would receive.
In that case, the focus of the application made by John Walker was the fact that his husband was not going to receive the same pension benefits after his death as would have been the case if Mr Walker was married to a woman.
The reason why the two situations were treated differently was because Mr Walker’s pensionable service began before 5 December 2005, which was the date when civil partnerships became legal in the UK.
For family lawyers, this case has highlighted the difference between how pensions were being treated on death to how they are treated on divorce.
Had Mr Walker’s marriage to his husband come to an end because of his divorce, rather than his death, then Mr Walker’s husband may have been entitled to make an application so that he could receive a share of Mr Walker’s pension.
Under the Matrimonial Causes Act, the court has the power to make various orders in relation to pensions. One of the most common orders is a pension sharing order. This is where the court can split and share a pension fund. This option is only available on divorce.
The result of a pension sharing order is that money is taken from one party’s pension pot and transferred into a new pension pot for the other party. There are complicated rules as to whether the new pension pot has to stay with the same pension company or can go to a different pension company and specialist advice should be sought both from a solicitor and from a financial advisor.
Within the remit of family law, solicitors and barristers are very used to the fact that there is no distinction between a heterosexual couple and a homosexual couple in terms of how the court deals with their finances on relationship breakdown. The factual circumstances of each case may be different, particularly if, by default, the civil partnership or homosexual marriage is shorter (it only became possible to enter into civil partnerships in December 2005 and a same sex marriage in March 2014). However, the starting point is that there is no distinction between the two, and the court will apply equally the key considerations, namely:
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future.
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
- The standard of living enjoyed by the family enjoyed before the breakdown of the marriage.
- The age of each party to the marriage and the duration of the marriage.
- Any physical or mental disability of either party to the marriage.
- The contributions which each of the parties has made or is likely to make in the foreseeable future.
- The conduct of each of the parties (which has to be quite significant and is rarely taken into account).
Related post: How do I know if I was mis sold a pension plan.
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