Family law – Are Pensions Built Up Before Marriage Protected?

Dividing assets on divorce involves considering both the wealth available and what each person needs for the future. Pensions can form a substantial part of that picture, particularly where the parties are approaching retirement. Rights built up before marriage may remain non-matrimonial, but they are not automatically beyond the reach of a financial claim.

This article examines BS v HC [2026] EWFC 20 (B) and what it shows about pre-marital pensions, matrimonialisation and the “add-back” of gifts made after separation.

How assets are divided on divorce

In England and Wales, courts consider all the circumstances, including the parties’ financial resources, needs, contributions and the length of the marriage. The welfare of any minor child is the court’s first consideration.

Equal sharing is the usual starting point for matrimonial property, with financial and domestic contributions valued equally. However, the outcome must reflect the parties’ circumstances and needs.

Pre-marital assets, inheritances and external gifts are generally non-matrimonial. In Standish v Standish [2025] UKSC 26, the Supreme Court confirmed that the sharing principle applies only to matrimonial property, although other assets may be used to meet needs or become matrimonial if treated as shared over time.

Pensions fall within the same framework, but the distinction can be harder to apply. Rights built up during marriage are generally matrimonial, yet one pension may also contain earlier rights and remain untouched until retirement. The court may therefore need to determine the matrimonial portion and whether any earlier rights later became shared. These questions were central to BS v HC.

How the court approached the pensions in BS v HC

In BS v HC [2026] EWFC 20 (B), the parties began living together and married in 2009 before separating in 2024. At the hearing, the husband’s pensions were worth about £3.06 million, compared with the wife’s £35,000. Much of his pension provision originated before the relationship but had grown considerably during it.

The parties proposed different methods of calculating the matrimonial portion. Applying Hart v Hart [2017] EWCA Civ 1306, HHJ Hess adopted a broader assessment because an exact mathematical division was difficult. He assessed 55% as matrimonial and 45% as non-matrimonial, based on the particular evidence rather than a fixed formula.

The court then considered whether the earlier portion had become matrimonialised. This could occur where the spouses intended to use the pension together in the future and one spouse relied on that intention to their detriment. Although the wife relied on a 2013 assurance that they would share everything, pensions were not mentioned. Her argument therefore failed.

Nevertheless, she could still share the matrimonial portion. She received 27.5% of the husband’s Quilter SIPP, broadly half of the 55% assessed as matrimonial. The overall award met her needs, so no further provision was made from the non-matrimonial portion.

Add back arguments about gifts after separation

In BS v HC, the wife requested an add-back of £102,330 for payments the husband made to his adult children after the relationship had broken down. An add-back is an exceptional adjustment that treats money already spent or given away as if it still formed part of the disposing spouse’s assets. It does not recover the money from the recipient.

The wife argued that, without an adjustment, she would effectively bear half the cost of the gifts. The court refused her request because the payments did not meet the high threshold of wanton or reckless spending intended to reduce her share. Although one gift came close, the court found that arguments concerning the wife’s own spending neutralised the position.

Why the circumstances matter

A long marriage does not automatically make every earlier asset matrimonial. Equally, identifying part of a pension as non-matrimonial does not prevent the court from considering it where necessary to meet retirement needs. The Pensions Advisory Group’s 2024 guidance, known as PAG2, recognises that needs often influence pension outcomes.

The court will consider how the pension developed, how the parties treated it and the resources each person will need. As BS v HC shows, pension apportionment is not purely mathematical but depends on the evidence and circumstances of each case.

How our Family Law team can help

Chan Neill Solicitors LLP’s experienced Family Law team advises on divorce and related financial matters. We can explain how pensions and other assets may be treated, assist with financial disclosure, address concerns about spending or gifts, and help with negotiations, consent orders and court proceedings. Where required, specialist pension evidence can be considered as part of the wider settlement.

Our trilingual team provides clear, practical advice in English, Mandarin and Cantonese. If you have concerns about your pension, financial position on divorce or another family law matter, please contact us to discuss how we may assist.