Can pre‑marriage pensions be shared on divorce?

Last year, the case of Standish v Standish sent ripples through the family law community when it ruled on how assets within a marriage can become “matrimonialised”. Matrimonialised (or matrimonialisation) means an asset that began as one person’s own becomes treated as part of the couple’s shared finances and on divorce it can be divided.

In short, the Supreme Court in Standish determined that whether an asset has been matrimonialised came down to how the asset was used and enjoyed in the marriage.  You can read more about this on our blog about Standish.

But pensions don’t work like houses or savings; you don’t “use” them during the marriage. So, can they ever become matrimonialised? A recent case called  BS v HC has provided some helpful guidance. 

What was the case about?

In BS v HC, the husband’s pensions had a cash equivalent value (CETV) of just over £3 million. He argued that because most of this had been built up before the marriage or through post‑separation passive growth his pensions were non-matrimonial and should not be shared with the wife on divorce.

The wife argued that the pensions had become matrimonial, not least because of how they had informed the couple’s finances during the marriage. In particular, the wife had received an inheritance of £1.5 million (which would otherwise have been a non-matrimonial asset and not shareable on divorce) which she had used to purchase the family home.

By using her inheritance in this way, she had matrimonialised it meaning she had effectively turned something originally “hers” into part of the couple’s shared financial pot. She did this because, she said, she and the husband had always treated everything as shared, including his pensions.

What did the judge have to decide?

The judge, HHJ Hess, had to consider:

• how to value and apportion the non-matrimonial elements of the husband’s pensions; and 
• whether there had been matrimonialisation. 

Ultimately HHJ Hess found that actuarial and accountancy methods for determining apportionment of the pension are informative, but not determinative.  They can help, but they don’t tell the whole story: the court still has to step back and decide what feels fair overall.

On the facts, it was found that when the wife purchased the home in joint names, the husband said words to the effect of “we will share everything equally in our marriage, everything comes and goes out of the same pot”. Though he did not specifically mention the pension and was not sufficient to matrimonialise the pension in its entirety, it showed what the couple intended. And, for the wife, she relied on this intention to her detriment.

The court found that 55% of the husband’s pension was to be treated as matrimonial giving rise to a pension share of 27.5% in the wife’s favour. The judge then cross‑checked this against the wife’s future needs and decided it was a fair outcome.

What does this mean for me?

The starting point for pensions, as with any assets, is that anything built up during the marriage is usually shared equally. But pensions are different from other assets because:

• people often build them up over decades;
• some of that growth may be before the relationship and some during;
• they are intended to meet future income needs, often for both partners;
• they are not “used” in the marriage in the same way a home or savings might be.

In many cases, discussions about matrimonialisation won’t arise because needs will require a pension share anyway. It may also be disproportionate to apportion pensions if the pre‑marriage element is modest. But BS v HC shows that the court will grapple with the issue where it is relevant.

Pensions are not used during the marriage, so they cannot become matrimonial through joint use alone. But HHJ Hess noted:

“A common intention to put the asset into use and enjoyment in the future could… give rise to matrimonialisation if that intention was relied upon by the other party to his or her detriment.”

In other words, even if the pension isn’t touched during the marriage, what the couple intended to do with it - and whether one person made financial decisions relying on that understanding - can matter.

Case study example

To bring this to life, imagine this scenario:

Alex built up a substantial pension in the ten years before he met Priya. Shortly after they married, Priya inherited £200,000. Instead of investing it into her own pension, she used it to help buy their first family home.

During the marriage, the couple often talked about retiring together and agreed they would “share everything”, including relying on Alex’s bigger pension.

When they later separated, Alex said his pension should be treated as his alone because most of it was built up pre‑marriage. Priya argued that she had relied on their shared retirement plans and had sacrificed building her own pension because she believed Alex’s pension was for both of them.

In a situation like this, based on the court’s approach in BS v HC, a judge might decide that part of the pre‑marriage pension has effectively become matrimonial, justifying a pension share in Priya’s favour.

Final thoughts

Ultimately, BS v HC offers valuable guidance on how pensions may become matrimonialised, but it also leaves open some difficult questions. If actuarial models are not determinative (or even highly persuasive), how will the court quantify a “fair” matrimonial element? Likewise, the role of detrimental reliance is not entirely clear: couples often intend to share assets whilst married, but these intentions are fluid, subjective and may never even be expressly articulated.

What the case does show is that pre‑marriage pensions are not automatically ring fenced. The court will look closely at the realities of the marriage, the couple’s intentions and whether financial decisions were made in reliance on shared plans.

Dividing pensions on divorce is rarely straightforward, especially where contributions span life before and during the marriage. If you’re unsure how your or your ex’s pension might be treated on divorce, getting early advice can make a huge difference.

Our specialist family lawyers can guide you through your options and help you reach a fair outcome. To speak to one of our experts, get in touch with the team today.

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