It’s mine, no, it’s mine! I had it before we got married!
Without a pre-nup, many people think their case is dead in the water, but that’s simply not the case. When considering the division of assets, it may actually be possible to ring fence certain elements that were accrued prior to the marriage taking place. This is certainly the case for pension pots.
When considering pensions, it is important to be clear about the type of pension scheme that is involved – different schemes have differing benefits, values and of course, pension freedom rules must be accounted for.
However, the length of the marriage, remains an important factor too, even where there is “no mingling” of assets, for instance joint bank accounts and the like.
The longer the marriage and, in particular, the more the parties relied on the capital and pensions for their future retirement, the less likely the chance of the Court excluding the pension from consideration. Generally, although there is no law to support this, if a Pension has been accrued entirely pre-marriage, then it is unlikely to be shared, save in relation to need. ‘Needs’ are critical in most cases, although there can be a degree of crystal ball gazing when looking at future pension needs.
Where the pension is accrued in part pre-marriage and in part post marriage, the approach to be taken may depend on the other factors in the case, such as the proportion of assets represented by the pension accrual for the length of the relationship, the view the court takes about each party’s future earning capacity and whether pension provision can be increased over time.
There are many orders that can be made in the context of financial remedy proceedings, but what is clear, is that all the circumstances of the case, will have a bearing on the outcome.