The Gazette 1996

GAZETTE

JULY 1996

a person on behalf of a dependant member of the family concerned, if it considers it proper to do so having regard to any change in the circumstances of the case and to any new evidence, by order vary or discharge an order to which Section 18 applies. Section 18 applies, inter alia, to orders under Section 11,12 (2) and 13. Interaction with other family assets Will a Court always, or usually, make substantial importance of Section 12 (23) (B) which provides that the Court may make a Pension Adjustment Order in addition to or in substitution in whole or in part for orders under Section 8, 9, 10 or 11 of the Family Law Act, 1995, and, in deciding whether or not to make the Pension Adjustment Order the Court must have regard to the question of whether adequate and reasonable financial provision exists or can be made for the spouse concerned or the dependant member of the family concerned by Orders under Section 8, 9, 10 or 11. Section 8 refers to periodical payments orders, secured periodical payments orders, and lump sum orders. Section 9 refers to property adjustment orders. Section 10 refers to miscellaneous ancillary orders such as exclusion orders, orders directing the sale of the family home, orders under Section 36 of the Act (which replaced Section 12 of the Married Women Status Act, 1957), and orders under the Family Home Protection Act, 1976, the Family Law Act, 1981, the Partition 1 Acts, 1868/1876 and the Guardianship and Infants Act, 1964. i Section 11 Section 11 provides for the granting of what are called financial compensation orders which are orders requiring either or both of the spouses ' concerned, inter alia, to effect a life a Pension Adjustment Order? .Practitioners should note the

insurance policy for the benefit of the applicant or a dependant member of the family in circumstances where the court considers that the financial security of the applicant or the dependant member of the family can be provided for either wholly or in part by so doing, or that the forfeiture, by reason of the Decree of Judicial Separation, by the applicant or the dependant as the case may be, of the opportunity or possibility of acquiring a benefit, for example a benefit under a pension scheme, can be compensated for wholly or in part by so doing. The granting of a decree of Judicial Separation will, of course, stop each spouse from making an application under Section 12 (2) in | relation to any retirement benefits accruing after the date of the Decree of Judicial Separation. Thus the Court might use Section 11 to compensate a spouse for this loss. It might not, of course, be necessary for the Court to make a Section 11 Order if the Court could make an order under Section 12 (3) in relation to a contingent benefit such as a death in service payment. Thus, I think it is a correct interpretation to say that the Court must first look at the possibility of making adequate and reasonable financial provision for the spouse concerned or the dependant members of the family by orders under Section 8, 9, 10 or 11, and only if such provision cannot be made, should the court embark on the consideration of the making a Pension Adjustment Order. As the making of a Pension Adjustment Order can potentially be very complicated and costly, if possible practitioners should try to agree on the division of the family assets in such a way that a pension adjustment arrangement will not be necessary. sections 8 to 11 before asking the Court to make a Pension Adjustment Order, because I believe that a Pension Adjustment Order could be a great deal more complicated than orders under, for example, sections 8 I to 11. 203 Practitioners must, therefore, carefully assess all of the family assets to see if adequate provision can be made under

Sub-section 3 A contingent benefit means a benefit payable under a pension scheme for the widow or widower and any dependants of the member spouse concerned and the personal | representative of the member spouse, I if the member dies while in relevant employment and before attaining the pensionable age provided for under the rules of the scheme. A common form of contingent benefit J would be a "death in service" lump sum payment. Sub-section 3 provides that a Pension Adjustment Order must be applied for in relation to a contingent benefit not more than one year after the making of the Decree of Judicial Separation, and the form of Pension Adjustment Order in this case is simply an Order for the payment of a percentage of the contingent benefit. Re-marriage The Court shall not make a Pension Adjustment Order if the applicant spouse has re-married. ! While an order under sub-section 3 (relating to contingent benefits) shall cease to have effect on the death or re- marriage of the spouse in whose favour it was made in so far as it relates to that spouse, a Pension ; Adjustment Order under sub-section 2 (in relation to retirement benefits) would appear to continue in force notwithstanding the re-marriage of the dependant spouse, although, | presumably, an application could be made by the respondent spouse under | Section 18 (2) to have the Pension Adjustment Order under sub-section 2 varied or discharged, unless the Court made an order under Section 12 (26) restricting or excluding the application of Section 18. Section 12 (26) provides that an order under Section 12 may restrict or exclude the application of Section 18 of the Act. Section 18 provides that the Court may, on application to it in that behalf by either of the spouses concerned, or in the case of the death of either of the spouses, by any other person who in the opinion of the Court has a sufficient interest in the matter, or by