With trade negotiations looming, a crucial rule is unlikely to apply to the UK once it leaves the European Union in January, which could take UK-based pensions out of reach in overseas divorces.
This means that spouses won’t be able to have their ex-partner’s UK pension as part of the divorce if they’re no longer resident in the UK.
Meet the criteria
Splitting a pension is a challenging process that is further complicated if the parties aren’t based in the country.
Currently, English courts can hear financial cases after an overseas divorce as long as one of the parties is domiciled or resident in England, of there is a matrimonial home in the country in which at least one part has a beneficial interest.
If these criteria are not met, then the EU has an important rule known as the ‘forum of necessity’.
This means where no other EU country has clear jurisdiction, a case can be heard in any of the members states as long as there’s enough of a connection to that country.
For example, one or both of the spouses previously lived there.
Serious asset
Kathryn Evans, a family law senior associate at Irwin Mitchell, said: “Brexit is going to change the face of international divorce law if there isn’t an agreement made by the end of the year and, as it stands, UK-based pensions will no longer be up for grabs for many who find themselves getting divorced abroad.
“Pensions can be a serious asset to contend with for the financially weaker party, with some valued in the hundreds of thousands or millions of pounds.
“To lose access to this would be a real blow at an already immensely stressful time for those needing financial provision after their marriage has ended.
“It’s hoped some sort of solution may be provided, but there aren’t any guarantees and so any expats going through a divorce, or even foreigners who used to live in the UK and have pensions there, should absolutely be made aware of this impending deadline.”
Matter of urgency
There’s a growing trend in emigration from the UK.
A BBC report suggests that an estimated 5.5 million British people live permanently abroad – almost one in 10 of the UK population – while the WZB Social Science Centre found a 30% rise in UK citizens moving to EU countries since 2016.
From a legal perspective, difficulties can arise when parties divorce overseas but still have assets based in the UK.
Commonly, parties have lived and worked in the UK for a number of years, while also contributing to English-based pensions.
Evans continued: “Formal applications that rely on the EU Maintenance Regulations for sharing pensions on divorce are now a ticking clock.
As a divorcing couple, if you live abroad and still have pensions based in the UK, it is time to seek urgent advice from a specialist family law solicitor in the UK.
“If proceedings aren’t brought swiftly, then it might end up becoming impossible for some spouses to divide their ex’s UK pension as part of the settlement, where it would otherwise have been accessible.”
