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A guide to pension regulations during a cross-border divorce
Regardless of the circumstances, divorce can be complicated; often amplified when there is an international element to consider. Cross-border divorce proceedings become more complex as jurisdiction must be determined, and the inevitable division of the various matrimonial assets may be more challenging if the assets are in more than one country. With regard to the division of pensions in a cross-border divorce, procedures governing this aspect vary between countries and there are several ways they can be shared.
This guide will explore what you should consider when the question of the division of pensions arises during a cross-border divorce, and outline how international lawyers can help.
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The various pension regulations, and how they vary in other countries.
The different ways pensions can be divided in cross-border divorces.
Discover which factors you should consider during cross-border divorce proceedings.
Find out about Giambrone & Partners and the family and divorce services team we provide.
The most common queries on cross-border divorces here.
How are pensions divided in a cross-border divorce?
Although pension division is common in divorce proceedings, it can become complicated when there are two countries to consider. In Europe alone, countries differ in their approach to pension regulations.
First, verifying that the country in which you would like the divorce to proceed through allows division of the pension assets is essential. For example, in France, the law disallows pension sharing during a divorce. Other countries may allow pension division; however, the rules may differ. In the Netherlands, Dutch law states that pensions should be divided equally between the spouses during a cross-border divorce, unless agreed otherwise between the parties.
It is vital to instruct international lawyers with capacity to operate in various jurisdictions. Giambrone & Partners multi-jurisdictional family lawyers have extensive experience dealing with cross-border family law matters.
Contact our family law team today to find out more information.
How are pensions divided in a cross-border divorce?
If the courts of England and Wales are applicable in a cross-border divorce they will deal with the pension arrangements for British nationals, or anybody connected to the UK. In England & Wales, this includes the total value of pensions, including any pensions obtained prior to the marriage. However, in Scotland, any pensions built up before the marriage or after the ‘date of separation’ do not contribute to the value.
Pensions can be split and shared in three different ways:
Pension sharing
Pension sharing involves dividing the pension benefits at the time of the divorce. If one spouse does not have their own pension they will receive a share of the other spouse’s pension benefits, which are then transferred into their name. This partner will receive a ‘pension credit’, whilst the spouse losing the pension benefits gets a ‘pension debit’.
This choice of pension division allows a ‘clean break’, as each spouse will know how much of the pension they will lose or gain. There is also the option of adding these pension credits to an existing scheme or creating a new pension; however, some schemes may not offer this choice.
Pension offsetting
In this type of pension division, offsetting allows one spouse to retain their entire pension in exchange for other assets, such as the family home. If the pension is worth less than the “offsetting” assets, the spouse receiving the pension may be entitled to an equal amount of the asset value. However, offsetting may not be possible if there are not enough assets.
Pension attachment
Also known as “earmarking”, the court will make a “pension attachment order”, which provides a portion of one spouse’s pension to be set aside for their ex-spouse who may not have a pension. Once the pension begins to roll out, one partner will receive a certain percentage.
The courts can also enforce that any surviving portion of a pension must be paid to the other partner if the spouse enrolled in the pension scheme has died.
Find out more about the financial division of assets during a divorce here.
At Giambrone & Partners, our family law team can provide advice in jurisdictions throughout Europe and the UK from all our European offices. We will advise and guide you to ensure the best outcome, and also assist with common issues such as financial disputes, and also disputes related to any aspect of the arrangements made for children of the marriage.
Contact our family lawyers.
What should you consider during a cross-border divorce?
Certain factors may alter the cross-border divorce proceedings, and the country in which it is processed. Factors to consider include:
- If there is a pre-nuptial agreement
- Nationality of both spouses
- What is the strongest connection to the couple that will determine jurisdiction in which the divorce will take place
- The importance of instructing international lawyers
Find out more about what to consider during a cross-border divorce here.
How Giambrone & Partners can help
Giambrone & Partners is an international law firm with legal capacity in various jurisdictions. Our experienced family lawyers can advise you on how to resolve issues throughout the divorce proceedings.
To speak to one of our family law experts, contact our family lawyers or email us at clientservices@giambronelaw.com.
Frequently asked questions
How long after a divorce can you claim a pension?
Unless a legally binding final settlement exists, there is no time limit for claiming assets, such as pensions, after a cross-border divorce.
Speak to one of our experts today to determine your rights during a cross-border divorce.