Divorce, Scotland, Pension! Please help!!

Scottish_Dorset

Hello, I have been married for 30 years, my husband left me approximately 10 years ago.  We have 4 grown up children.  We are both from England, married in England and lived our married life in England.  My husband was a manager for a bank (Barclays) and was earning approx £45k.  I worked also but did not earn as much as he.  It was decided that his pension would be our pension so I did not take out a separate pension.  He had an affair, the marriage broke up, he moved to Scotland to live with his new partner, I went down in a deep depressive spiral, of which I am only just beginning to emerge.  The family house was sold, debts paid off and the proceeds split 50/50.  

I instructed a solicitor to start divorce proceedings, however my husband immediately responded by starting the divorce in Scotland.  I now realise (and was incorrectly informed by my solicitor) that Scottish law would be in my favour for splitting the only remaining family asset: his pension.  However the valuation of the pension at the point of separation is probably much smaller than it would be now.  I am really struggling.  I am living in rented accommodation, I have large debts from ongoing solicitor bills (I no longer have solicitor representation) and living hand to mouth, although working full time.  I've requested online mediation (to keep costs down)  but my husband has refused.  I am now dealing with his solicitor directly.  If I lived in Scotland I would be entitled to legal aid.  

Our marriage was very much joint, one bank account and everything shared.  When we got together my husband had two young children from a previous marriage.  I have brought those up as my own (they lived with us) and we went on to have two children together.  We improved our position by renovation properties, the majority of which I did with the help of my family, free of charge.  My mother, who lived next door, had a major role in helping to raise the children also.  My husband's family contributed nothing towards our family.  My mum will provide for all four children in her will as she see's all of them as equal grandchildren.

My husband worked very hard, studying at university whilst working, hence his promotions.  Though none of this would have happened if he did not have the ongoing support of myself and my family.  I thought at the time it was for us.

All I seek is a 50% share of his pension, though I know this may be restricted due to the 'date of separation' in Scottish Law.  I feel everything has been unfair.  The pension which I believe is untouched will have gone up in value tremendously, he has never disclosed the value, even after many requests, he left the bank shortly before the end of the marriage.  He will be the one to benefit from the uplift even thought it is an asset that was earned during our marriage, there have been no further contributions.  

I cannot afford to employ another solicitor, I feel like I am fighting against an almighty power now.  I spoke to him on the phone the other week, the first time in years, to try and sort out a negotiation, but he insists it is done through his solicitor.

Has anyone got any sage advice, suggestion, examples or directions where to go or what to do.  I feel completely deflated.

Many thanks for lasting this long.

MovingForwards

Ask on wikivorce it's like MSE only for relationship / marriage breakdown and the separation of assets / divorce.

Scottish_Dorset

Thank you MovingForwards.  I have posted on Wikivorce but unfortunately the only response is to seek legal help, which I cannot afford to do.  Need money to make money!

tacpot12

One the face of it, your situation is pretty simple. You need a Pension Sharing Order. You are entitled to 50% of his pensions from the point of separation (because the previous financial settlement was 50/50). He has a solicitor to draw up the order and is responsible for obtaining the cash equivalent transfer value at the date of separation which should come from Barclays and be provided to you, you just need to negotiate to make sure you get the 50% you are entitled to. If there is a legal argument as to whether you are entitled to 50%, you might need a solicitor to confirm what legal arguments should be made, and whether there is any case law or precedents that are relevant. 

I am not an expert, but have looked at information available on the Internet and would suggest that it would better to agree a Pensions Sharing Order, even if this is for less than 50%, as the alternative might be to seek a Pension Earmarking Order yourself (you draft the order), and his solicitor would defend this at court. The problem with an Earmarking Order is that in Scotland, it isn’t possible to earmark pension benefits; only lump sum benefits on retirement or death can be made subject to an earmarking order. Also, you would only receive the lump sum when he receives his lump sum. If he commutes the lump sum to a monthly pension benefit, you would get nothing. Your Pensions Earmarking Order should require both lump sums payable on retirement AND lump sums payable on death to be earmarked for you. It should also state whether these lump sums will still be payable if you remarry or enter a civil partnership. I would suggest that these should. The court can refuse the order if it agrees with any argument that this is excessive/inappropriate. Another risk with Earmarking orders is that the order moves with any transfer of the pension, but your ex could potentially move his Barclays pension to a pension that doesn't pay any lump sump on retirement. All in all, a Pension Sharing Order seems much preferable to an Earmarking Order, even if you have to agree to a less than 50/50 split to have your ex agree to it.  

If you want to split your state pension entitlement, you and he (or his solicitor) need to complete form BR20NSP, see here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/864125/BR20NSP.pdf 
Note that only state pension entitlement ABOVE the basic entitlement to the State Pension (i.e. any protected amount built up under the old pre-April 2016 Additional State Pension). He may have no such amount, but you won't know this unless he completes the BR20NSP.  

I would suggest you insist on this if you have a relatively low entitlement to the state pension. You can use it as a bargaining chip with his solicitor; I would start asking for 50/50 of the Barclays pension and no need to split of State Pension Entitlement, and require the splitting of his state pension if the split of the Barclays pension goes below 45%. I think a good target to aim for is 45% of his Barclays pension.  

MovingForwards

I'm sorry to hear that, as they were so helpful when I posted. 

Scottish_Dorset

Thank you tacpot2, I will look into this.

nastyphoenix

Sorry to hear about that. Did you get it sorted out? If you are not entitled to legal aid you could always do a cheap online divorce like I did (I also wasn't entitled to legal aid). I used https://onlinedivorcescotland.co.uk/ which only cost around £200 I think. I know there are similar services in England too so you could try them if you need to. 

sheramber

nastyphoenix said:

Sorry to hear about that. Did you get it sorted out? If you are not entitled to legal aid you could always do a cheap online divorce like I did (I also wasn't entitled to legal aid). I used https://onlinedivorcescotland.co.uk/ which only cost around £200 I think. I know there are similar services in England too so you could try them if you need to. 

It seems you can only use that if you have agreed how assets are to be split , which does not apply to the OPs situation