For many, the subject of pensions is one that is barely thought about until absolutely necessary. The same is certainly true in the context of divorce proceedings. Unless retirement is imminent, asking clients to think about pensions is a difficult concept for them to grasp. This is particularly true of clients who would be classed as the financially weaker party who may not have ever, or at least not for a long time, contributed to any form of private pension. Self-employed individuals can also find themselves in this same predicament.
When an international angle is added to the mix, the situation can become even more complicated and, if relevant advice is not sought, then parties can run into real trouble later down the line when trying to implement the terms of any settlement reached. In this brief article, we focus on the key considerations for couples with Swiss pension assets divorcing in England and Wales.
Splitting pension assets in financial remedies proceedings in England and Wales
Pension sharing orders are one of the multitude of orders that an English court can make in financial remedy proceedings. In plain English this usually means that money is taken out of a party’s pension and transferred into a new pot in the name of the other party, the aim being to provide the receiving party with either a certain level of capital (from which they can then draw an income at the relevant time) or ensuring that a certain level of income is possible. Pensions cannot, and should not, be treated in the same manner as, for example, real property – a pound in pension is not necessarily worth a pound in liquid cash.
The calculation of (i) the cash equivalent transfer values and (ii) the percentages required to effect the desired division can be complicated and in many cases, a single joint pensions expert will be instructed to provide a report for the parties to use in the proceedings (and to assist settlement negotiations). The expert will often be asked to carry out offsetting calculations. Offsetting is the process by which the right to receive a present or future pension is traded for present capital.
The starting point in financial remedy proceedings in England is an equal division of the matrimonial pot (i.e. assets that came into existence or were built up during the marriage), subject to each party’s portion meeting their respective needs. In terms of pensions, this would mean a division of the total pension pot to enable either equalisation of capital or equalisation of income. A pension sharing order is approved by an English court and sent to the pension provider who will then liaise with both parties/their legal representatives to implement the required division.
Swiss pension assets
Swiss pension assets present a number of challenges in financial remedy proceedings in England and Wales. The first difficulty is that Swiss courts have exclusive jurisdiction over the division of Swiss occupational pensions on divorce. For this reason, Swiss courts cannot give effect to foreign orders purporting to split Swiss pensions between former spouses. Therefore, spouses divorcing in England and Wales will often need to initiate further proceedings in Switzerland to divide their Swiss pension assets once proceedings in this jurisdiction have concluded. Such a course is inevitable in cases where there is insufficient liquid capital to offset a spouse’s entitlement to share in a Swiss pension.
The second difficulty is that, even in a case where offsetting is possible, alighting on correct actuarial values is virtually impossible. The problem is two-fold. First, pension experts in England and Wales will use a wide range of assumptions when calculating pension values and offsetting lump sums (such as risk, rate of return, adjustments for tax etc). Those assumptions are specific to pension assets in this jurisdiction. Actuaries in England and Wales are not qualified to adjust those assumptions to fit foreign pension assets. Some actuaries offer to prepare offsetting calculations disregarding the foreign nature of the pension assets and treating them as domestic pension funds. Such calculations are by their very nature fictional and therefore unsatisfactory.
Second, independent Swiss actuaries will not report on Swiss pension values and offsetting lump sums. The reason for this is simple. In Switzerland, the pension provider is responsible for informing a divorcing spouse of (a) the current value of their pension fund and (b) the amount shareable with the other spouse. Swiss pension providers do not provide offsetting calculations because, in the vast majority of Swiss divorces, pension assets accumulated between the date of the marriage and the date of the divorce application are simply split equally between the parties.
The combination of those factors can leave divorcing spouses with Swiss pensions feeling stuck between a rock and a hard place. Finding the best option to achieve a fair result while limiting implementation costs requires early legal advice and careful financial planning.
Conclusion
This is intended to be a brief summary only. Pensions on divorce is a complicated topic even without the added complexity when international factors must be taken into account. It is always advisable to seek jurisdiction specific legal advice at the outset of any discussions in relation to the treatment and potential division of pensions in the context of a separation.
Further information
If you have any questions regarding this blog, please contact our Anglo-French team.
About the authors
Colleen Hall is a Senior Associate in the Family team. She is a fluent French speaker and advises on all aspects of family law issues, with a particular specialism in cases with an Anglo-French element.
Roxane Reiser is a Barrister at Wilberforce Chambers, her practice covers traditional chancery work, with a particular emphasis on trusts issues in the divorce context. Many of her cases have international elements.
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