Pensions, Matrimonialisation and the Limits of Sharing: Lessons from BS v HC
Pensions are often amongst the most valuable assets in a divorce, yet they remain one of the most difficult to deal with. A recent decision of HHJ Hess in BS v HC [2026] EWFC 20 (B) provides useful guidance on how the court may approach pensions that were accrued, at least in part, before the marriage.
The case concerned a marriage of around 15 years. Whilst many of the parties' non-pension assets could be divided relatively straightforwardly, the husband's pensions became the central issue. Their value exceeded £3 million, whereas the wife's pension provision was modest by comparison.
The key question was whether pension rights built up before the marriage should nevertheless be treated as matrimonial assets available for sharing.
The Significance of Matrimonialisation
In recent years, the courts have increasingly considered the concept of "matrimonialisation". Broadly speaking, this refers to circumstances in which an asset that originally belonged to one party is treated, over time, as part of the parties' shared marital wealth.
The issue has received particular attention following the Supreme Court's decision in Standish v Standish. However, as BS v HC demonstrates, applying that concept to pensions is not always straightforward.
Unlike property, savings or investments, pensions are rarely mixed together during a marriage. They usually remain in one party's sole name and frequently cannot be accessed for many years. That characteristic led HHJ Hess to observe that pensions occupy a somewhat different position from other forms of wealth commonly encountered in financial remedy proceedings.
A Question of Fairness Rather Than Formula
The parties relied on differing actuarial approaches to determine what proportion of the husband's pensions should be regarded as matrimonial and non-matrimonial.
Rather than adopting any single methodology, HHJ Hess emphasised that financial remedy cases are ultimately concerned with fairness. Whilst expert calculations can assist the court, they do not remove the need for an evaluative assessment of the particular facts of the case.
This is a point often overlooked in discussions about pensions. Whilst figures and calculations are important, they are only part of the wider exercise the court is required to undertake.
The Outcome
Having considered the evidence as a whole, the court concluded that 55% of the husband's pension provision should be regarded as matrimonial in nature, with the remaining 45% retaining its non-matrimonial character.
The decision is notable because it demonstrates that even after a lengthy marriage, a significant portion of a pension may remain outside the sharing principle.
The judgment also serves as a reminder that the growth in value of a pension during a marriage does not necessarily mean that the entirety of that growth should be treated as matrimonial. Pension values may increase for a range of reasons, including investment performance, actuarial assumptions and earlier periods of service.
Why the Case Matters
Cases involving substantial pension assets are becoming increasingly common. For many couples, pensions represent a larger asset than the family home.
The decision in BS v HC illustrates that there is no universal rule when dealing with pensions accrued before marriage. Whether a pension, or part of it, should be shared will depend upon the particular circumstances of the case, including the duration of the marriage, the parties' overall financial resources and the extent to which fairness requires sharing.
Whilst each case turns on its own facts, the judgment is a useful reminder that the concepts of non-matrimonial property and matrimonialisation continue to evolve, particularly in relation to pensions.
Need Advice?
Cases such as BS v HC demonstrate that there is rarely a straightforward answer when dealing with pensions on divorce. Whether a pension should be shared, and to what extent, will depend on the particular facts of each case.
If you would like tailored advice regarding your own circumstances, please contact a member of our Family Law team.
Disclaimer: This article is intended for general information purposes only and should not be relied upon as legal advice. Every case will depend on its individual facts and circumstances. If you require advice about your specific situation, you should seek independent legal advice from a qualified solicitor. Reading this article does not create a solicitor-client relationship.
This is written by Phoebe Chau, assisted by Copilot.
