Pension sharing following an overseas divorce
Updated: 4 December 2023
First published: 7 January 2020
Do you have a pension in England or another part of the UK? This article discusses the process of pension sharing following a divorce, particularly for those with pensions in the UK who are divorcing outside of England. It emphasises that foreign court orders cannot be used to transfer a UK-based pension, and UK pension providers require a pension sharing order from the courts of England and Wales.
The article outlines two scenarios – for those not yet divorced and those already divorced abroad – and touches on jurisdiction issues and the court process for obtaining a pension sharing order.
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. Even if not by agreement, the English courts will often make a pension sharing order where it is appropriate to do so. 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 always required.
It is important that any foreign order is sent to a trained legal professional for approval before being finalised to ensure that there will not be any issues with implementing the pension sharing aspect of the order in England and Wales.
How to obtain an English pension sharing order
In summary, the court has the power to make an order if either party is domiciled in England and Wales or has been habitually resident there for a year. These orders are made under Part III of the Matrimonial and Family Proceedings Act 1984.
Before Brexit, it was possible to use jurisdiction for the pension sharing order through Article 7 of the EU Maintenance Regulation entitled ‘Forum Necessitatis’. This avenue is no longer available but please get in touch with us if this applies to you, to discuss whether there is anything we can do to assist you.
Please note that if both parties have remarried the court will no longer have jurisdiction to make the pension sharing order.
The Court process to Obtain a Pension Sharing Order
If matters are agreed this can be done entirely by submitting the relevant applications and documents on paper without the need to attend court.
If you would like advice about how to obtain a pension sharing order in England, please contact Hero Lomas by email: hero@expatriatelaw.com.
