Protecting Pension Rights

My wife and I inserted a clause in our Separation Agreement that neither of us would have any interest in our respective pensions. Is that the end of the matter or can either of us raise this issue again?

Firstly, you both have protection under the law of contract. However, the Courts are not bound by your contract in a divorce application. It has been stated in the Supreme Court that while the judiciary will be looth to interfere in a legal binding contract that has been properly negotiated they will not be bound by the terms of a Separation Agreement/Deed of Separation if they believe they were unfair to begin with, circumstances have changed, either party were under duress at the time of the agreement, there was poor legal opinion obtained etc.

The only way to fully protect your pension is by applying for pension adjustment orders through an application for divorce.

Secondly, if you have a Separation Agreement/Deed of Separation you, by law, cannot apply for a judicial separation. Therefore, in this situation you can only fully protect your pension by applying for pension adjustment orders in a divorce application.

Thirdly, the sooner you apply for divorce and obtain pension adjustment orders the more protection you give to retaining pension rights as the Court can only award a percentage of a members retirement benefit for that amount that has accrued at the time of the making of the divorce decree.

Likewise if you have protected your pension or awarded a share of your pension to your spouse as part of an application for Judicial Separation a Court in a subsequent application for a divorce can on application revise such an order. Therefore again the quicker you apply for your divorce and obtain the court pension adjustment orders the quicker you are protected. Once you have been granted a decree of divorce you can also seek an order to exclude or restrict a subsequent order to vary the pension adjustment order. Then and only then are you assured of your pension rights.