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When a married couple divorces or a civil partnership is dissolved, there is likely to be a sharing out of the assets belonging to the former couple.

Accrued pension benefits, whether in a defined contribution or defined benefit pension scheme, may be a major asset. With the automatic enrolment of many employees into workplace pensions, this is only likely to increase.

If either or both of the parties to the marriage or partnership have accrued pension rights, then these are viewed by the court as part of the former couple’s assets for disposition on divorce. In Scotland, the process is different and, for example, only pension rights built up during the marriage are shared (see McDonald).

If a prenuptial agreement is in place, and if it was freely entered into by each party with a full appreciation of its implication, the courts may uphold it, unless it would not be fair to hold the parties to it. While it is outside the scope of this guidance note to discuss