This week the Supreme Court made a landmark decision with a significant bearing on the treatment of pensions in divorce cases in Scotland.
Reversing the decision of the Appeal Court in Scotland, the Supreme Court’s decision means that pensions which have not been contributed towards/ run up during a marriage will now need to be looked as part of a Scottish divorce case.
Up until now a pension contributed towards before the marriage and not during would be ignored when it comes to figuring out what is in the “pot” of assets to be divided. The Supreme Court says that is wrong. The fact that someone has a pension during the marriage is all that matters. Whether payments are made to the pension or whether there is pensionable service during the marriage doesn’t come into it.
The Supreme Court made it clear that it remains possible to argue that the pre-marriage source of the pension is a factor which may be accounted for as “special circumstances”. But this is an argument which a Court can accept or reject at its discretion.
Having wrangled for many years on how to interpret the point in question, many family lawyers will welcome the decision on this particular matter, but it may lead to more bargaining and arguments over the appropriate treatment of pensions on divorce/separation.