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JGM, Solicitor
Category: Law
Satisfied Customers: 12183
Experience:  30 years as a practising solicitor.
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I am planning on separating from my ( verbally abusive ) husband.

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I am planning on separating from my ( verbally abusive ) husband. Although I supported myself and contributed e qually in financial terms throughout most of the 12 yr marriage, I'll health forced me to give up my employment and for the past year or so I have been completely financially dependant on him. I am 53 and connot access my relatively small work pension pots yet. Husband turned 60 in August, had large tax free lump sum which is mostly still in a joint bank account plus he has generous monthly pension.
I believe that on divorce in Scotland, maintainable. Is only paid until the divorce happens, after 1 or 2 years. How then is my / any entitlement to part of his pension calculated no w that it is already in payment. Also, what happens in a situation where he may not be able to pay me any capital I may b e due if it is tied up in his final salary pension s chime. Which he also referred to ad being worth about 1 million? I have always supported his ca refer , at the expense of my own and had to do a. Round commute of about 120 miles per day for about 10 years so that he could live near his work and the airport. Any guidance nice would be appreciated. W e are both resident in Scotland. Thanks
Thank you for your question.
I am a Scots solicitor and will help you with this.
You are entitled to a half of everything which has accrued during the course of the marriage. You are also entitled to maintenance. Before a divorce this is called interim aliment. After divorce this is called periodical allowance and can last for such period from the date of divorce as the court directs, usually for a maximum of three years.
The amount is assessed on an individual basis having regard to the resources and needs of the parties and the extent to which a capital payment can offset a need for periodical allowance.
See the Family Law (Scotland) Act in this connection. It's easily available online.
So the first thing that is done is to calculate the nature and extent of the matrimonial property accrued during the marriage. There are special rules which apply to pensions and additional rules applying to pensions already in payment. These say that If your husband has retired, the pension can still be split. However, the rules are slightly different.
For Instance, it isn’t possible for you to take a lump sum from your husband’s pension if he or she is already receiving an income from it. This applies even if your husband took a lump sum. Accordingly a larger income payment would have to be negotiated or ordered by the court. It is always more difficult to deal with pensions in payment and I do have to advise you that if the pension is the main asset, the spouse doesn't always see the full value because of the different rules. That's why your aim should be to ensure maximum income from the pension by identifying an appropriate split having regard to the amount accrued during the marriage for which there is a formula under the relevant statutory regulations.
Note the following general points:
The amount to be shared is made by order of the court and is often specified in percentage terms but in Scotland it is possible for the amount to be specified in monetary terms. This amount is credited to the ex-spouse with an equivalent debit made against the member’s entitlement.
Any pension credit created on or after 6 April 2006 counts against the ex-spouse’s lifetime allowance.
Where a pension credit is created in respect of a pension already in payment and that payment began after 5 April 2006, the ex-spouse can choose to enhance their lifetime allowance. This is because the pension in payment will already have been tested against the lifetime allowance of the member.
Pension credits or debits are not taken into account for annual allowance purposes.
If a sharing order came into force while the original scheme member was in receipt of retirement benefits, a nil PCLS certificate must accompany the transfer payment. The ex-spouse cannot receive any additional PCLS where such a payment has been made or had the potential to be made.
In the first instance you want to speak to a solicitor experienced in financial provision on divorce and he may wish to consult with an actuary to work out what is a fair entitlement for you having regard to the fact that the pension is in payment, the length of marriage etc.
I hope this helps.
Please leave a positive response so that I am credited for my time.
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