FEAR OF FINANCE

It is a brave man and an even braver woman who would step into the path of the bandwagon in favour of pension splitting on divorce. Political correctness is one thing but when it is reinforced by money it is irresistible.

Not that this column would stand in the way of fair treatment anyway. The Equal Opportunities Commission may have passed a significant milestone last year when the number of complaints from men exceeded those from women for the first time ever, but raw figures suggest that women still, on average, earn less than men and they certainly have much poorer pension expectations than men.

According to Flemings, 52 per cent of the adult female population is likely to be hard-up in retirement, compared with 46 per cent of men, and it will take a working lifetime after equality of earnings has been established for that inbuilt bias to be eroded.

Pensions, of course, are a peculiar asset, and are often regarded as deferred pay. Once the principle was established, however, that the tangible assets built up during a marriage should be shared equally on divorce, it has become increasingly difficult to argue that intangible assets like pensions should be treated any differently to tangible assets like houses, furniture and investments.

The main reasons that they have not been shared in the past are purely practical. It is difficult to put a precise value on a pension while the owner is still working because in the past most pensions have been based on a multiple of the owner's final salary and length of service. Personal pension pots are easier to quantify or at least to guesstimate by using the standard criteria used in marketing them.

But converting an accepted principle into sound practice is not going to be easy. It looks as if the law will recognise both for pensions to be shared when they actually become due for payment - pension earmarking - and for the prospective pension funds to be capitalised and split into two at the time of divorce - pension splitting. The former may favour the wealthier party and the choice of method could itself become a contentious issue. There is also a general fear that whatever the basis of division the sum of the two halves will be less than the whole and part will be swallowed up in administrative costs.

All current proposals seem to agree that the point of divorce is the most suitable point for the partition of pension assets. But this ignores the fact that under future legislation there will always be a gap of 18 months between the point at which a marriage actually breaks down (and the parties petition for divorce) and the point of divorce itself.

In the past, the time interval between the point of break-down and the point of divorce may also have been much longer. Some couples may have separated, reached a private financial agreement and gone their separate ways years before they even contemplate divorce. There is a real risk that if pension assets are put on the table to be split, many amicable agreements will be reopened acrimoniously. There is a good case, therefore, for arguing that assets and pensions should be split at the point of separation rather than the point of divorce.

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