For many divorcing couples, pensions are one of the most valuable assets in the marriage, yet they are often the least understood. Unlike the family home or savings accounts, pensions cannot usually be accessed immediately, and the rules governing who receives what, and when, are shaped by family law and pension legislation.
This uncertainty can often lead to anxiety for divorcing couples. A spouse may worry that they will have to wait decades before seeing any benefit, or that their ex-partner could manipulate when and how the pension is taken. Others assume that pensions work in the same way as income or capital, only to discover later that very different rules apply.
In this article, we look at how pension sharing works in practice, when a former spouse may receive their share, and what happens if the pension-holding spouse delays retirement, takes a lump sum, or draws only part of their pension. We also look at whether one spouse can force payment and whether there are advantages to receiving the pension in a particular way.
Why pensions matter so much on divorce
Pensions are treated as matrimonial assets regardless of whose name they are in. In long marriages, pension wealth may exceed the value of the family home. Even in shorter relationships, a defined benefit, such as a final salary pension, can represent significant future income.
The court’s aim, where possible, is to achieve fairness by taking into account factors such as the length of the marriage, each party’s age, earning capacity, and future needs. Pensions are therefore not simply divided mechanically, and how they are dealt with will depend on the wider financial picture.
The main ways pensions can be dealt with on divorce
The following are the three main ways pensions may be dealt with during divorce:
- Pension sharing orders: This is now the most common approach and creates a clean break by transferring a percentage of one spouse’s pension into the other spouse’s name.
- Pension attachment (or earmarking) orders: These are far less common and link the receiving spouse’s benefit to the pension-holder’s retirement decisions.
- Pension offsetting: Rather than dividing the pension, its value is offset against other assets, such as property or savings.
The question of when a spouse receives their ex’s pension depends almost entirely on which of these routes is used.
Pension sharing: when does the spouse receive their pension?
With a pension sharing order, the spouse does not have to wait for their ex to retire.
Once the divorce is final and the pension sharing order takes effect, the pension scheme implements the order, which can take up to four months. The agreed percentage is then transferred into a separate pension pot in the receiving spouse’s own name.
From that point onwards:
- The pension belongs entirely to the receiving spouse
- It is independent of the ex-partner’s retirement decisions
- It can usually be transferred to another pension provider if desired
The receiving spouse will only be able to access the pension in line with pension rules – typically from age 55 (rising to 57 from 2028) – but crucially, you are not reliant on your ex to take any action.
Will the spouse receive monthly payments straight away?
With pension sharing, there are no automatic monthly payments after divorce. Instead, the spouse receives a pension pot that will later generate income when they choose to draw it.
When the receiving spouse reaches pension access age, they may have options such as:
- Taking a tax-free lump sum (usually up to 25%)
- Drawing a regular income via drawdown
- Purchasing an annuity for guaranteed income
The timing and structure of those payments are entirely their own choice, subject to the scheme’s rules.
What if the pension-holding spouse delays retirement?
With pension sharing, a delay in retirement by the ex-spouse has no impact. The receiving spouse’s pension is separate and can be accessed independently.
However, with pension attachment orders, the position is very different.
Pension attachment orders: waiting on the ex-spouse
Under a pension attachment order, the receiving spouse is entitled to a portion of the pension benefits when the pension-holding spouse chooses to take them.
This means:
- If the pension-holder delays retirement, the receiving spouse must wait
- If the pension-holder takes a reduced pension, the attached share is also reduced
- If the pension-holder dies before retirement, the pension income may never be paid
Payments are usually made as income rather than as a capital sum, and they stop if the receiving spouse remarries. For these reasons, pension attachment orders are now relatively rare and are generally avoided unless there are very specific circumstances.
What if a spouse only takes part of their pension?
If there is a pension sharing order, it makes no difference how much or how little the ex-spouse takes from their remaining pension. The receiving spouse’s share has already been carved out and therefore protected.
If there is no pension sharing order and the settlement relies on future income (for example, through attachment), the receiving spouse may find that their income is significantly lower if the pension-holder draws only minimal amounts.
This risk is one of the main reasons courts and practitioners favour pension sharing wherever possible.
What if the pension-holder takes a lump sum?
Again, the answer depends on how the pension has been dealt with.
With pension sharing:
- The lump sum taken by the pension-holder comes from their remaining pension only
- The receiving spouse’s pension pot is unaffected
With pension attachment:
- The lump sum may or may not be shared, depending on the terms of the order
- Some attachment orders apply only to income, not capital
This distinction can have significant financial consequences and is one of the reasons pension attachment is viewed as unpredictable.
Can a spouse force the other to take their pension?
The court cannot compel a spouse to retire or draw their pension at a particular time. Even in cases where one spouse is eager to receive pension income, the other retains autonomy over their retirement decisions.
The only way to avoid being affected by those decisions is through a pension sharing order, which removes future dependency altogether.
Defined benefit vs defined contribution pensions
The type of pension involved also affects how and when a spouse receives benefits:
- Defined benefit (final salary) pensions: These promise a fixed income at retirement, often linked to salary and years of service. They can be complex to value and may include valuable survivor benefits.
With pension sharing, the receiving spouse often receives a pension credit that may still be payable only at the scheme’s normal retirement age, though it remains independent of the ex-spouse.
- Defined contribution pensions: These are investment-based pots with flexible access options. Pension sharing is usually more straightforward, and the receiving spouse may have greater control over timing and investment strategy.
Is it better to receive pension provision in a particular way?
There is no universal answer, but several factors are commonly considered:
- Age difference between the spouses
- Health and life expectancy
- Income needs at retirement
- Other assets available
- Desire for a clean break
For many people, pension sharing provides clarity, independence, and long-term security. Offsetting can be attractive where immediate capital is needed, but it carries risks if pension values are underestimated.
Attachment orders are usually seen as a last resort because of their inherent uncertainty.
Given the long-term implications, specialist legal advice, often alongside independent financial guidance, is essential to ensure that pension arrangements support financial stability well beyond the end of the marriage.