The Gazette 1996

GAZETTE

JULY 1996

member of the scheme or arrangement upon retirement at normal pensionable age or upon earlier or later retirement or upon leaving or upon the ceasing of the relevant employment, or, ! (ii) Benefits for the widow, widower or dependants of the member or for any other person on the death of the member." Details of these latter schemes will have to be obtained by voluntary or compulsory discovery, because Section 54 of the 1990 Act will not apply to them. It is to be hoped that practitioners would include details of all pension schemes in the "Statement of Means" which must be filed in Circuit Family Court proceedings. I believe that the Law Society and the j Bar Associations should issue specific practice notes recommending the furnishing of full details of pension schemes either in the "Statement of Means" or by way of voluntary discovery. When practitioners have obtained the necessary information about the pension scheme in question they will have to consider taking expert advice on the type of Pension Adjustment Order to seek. This will depend on such things as the ages of the spouses, ! the length of reckonable service, the length of the marriage and the length of time the spouses lived together, and of course the ages of any dependant members of the family. Judges could not be expected to make Pension Adjustment Orders without expert ' evidence, particularly in the light of the provisions of sub-section 2 that | the Pension Adjustment Order under I that Section must specify the period of ! reckonable service of the member spouse prior to the granting of the decree and the percentage of the retirement benefit accrued during that period to be paid to the applicant or ! the dependant family member. j Notice to Trustees Practitioners will have to be aware that it is provided under Section 12 (18) of the 1995 Act that when an

18 (2) (for the variation of discharge of an Order under sub-section 2) the applicant must give notice of the application to the trustees of the scheme concerned and the Court must have regard to any representation made by the Trustees. The pension scheme trust deed may provide an i address for service of notices on the i trustees, but if there is no such provision notice will have to be served ! on the Trustees at their addresses as set out in the Deed. The trustees may | decide to appear at the hearing of the application and make representations. This will of course add to the costs of I the proceedings. Practitioners should therefore, if at all possible, make contact well in advance of the hearing ; date with the Trustees to ascertain any j concerns the Trustees might have and to allay these concerns. Obviously the simplest approach would be for the spouses to agree the format of the Pension Adjustment Order and get the Trustee's agreement also. This would minimise costs. However as we do not I of course live in an ideal world there will be cases where spouses will not j agree or the concerns of the trustees will not be allayed and they will have | to appear in the proceedings. | Costs The trustees may decide to appear if the order sought is likely to involve additional costs for the scheme, so that the Trustee can ensure that the spouses understand that there are additional costs and that they will have to bear these. Trustees may also ! wish to appear if they feel that a ! Pension Adjustment Order is unnecessary because, for example, the value of the pension benefit is small and the cost of administering the Order would not be justified. Sub- section 22 of Section 12 provides that any costs incurred by trustees under sub-section 18 or in complying with a Pension Adjustment Order or a direction under sub-sections 20 or 25 shall be borne either by the member spouse or by the applicant or by both of them in such proportion as the Court may determine. An Order under j sub-section 20 is basically an Order i giving the Trustees such directions as J the Court thinks appropriate for the purposes of the Pension Adjustment

Practical points about the making of a Pension Adjustment Order Certain essential facts and information j will of necessity have to be made available to the Court before it can embark upon the making of a Pension Adjustment Order, which will, I believe, involve something akin to a "trial within a trial". In order to make a Pension Adjustment Order the Court will I firstly require full details of the : pension scheme and the trustees thereof. Practitioners will be familiar j with the provisions of Section 54 of ; the Pensions Act, 1990 which requires i trustees of occupational pension i schemes to provide certain financial and other information about the scheme to, inter alia, members and their spouses. Practitioners representing member spouses will be able to use this section to obtain much information. Sub-section 24 of Section 12 of the 1995 Act provides that Section 54 of the Pensions Act, 1990 and any regulations made thereunder shall apply to a pension scheme if proceedings for a Decree of Judicial Separation to which a member spouse is a party have been instituted, and shall continue to apply notwithstanding the grant of a Decree of Judicial Separation. A practitioner's first step should therefore be to invoke the provisions of Section 54 of the 1990 Act and obtain as much information as possible from the trustees. The definition of "Pension Scheme" in the 1995 Act not only refers to occupational pension schemes within the meaning of the Pensions Act, 1990 ! which would include private occupational schemes and the Civil j Service and Semi State schemes, but ' the 1995 Act also applies to • "any other scheme or arrangement ; (including a personal pension plan and a scheme or arrangement established by or pursuant to Statute or Instrument made under Statute other than under the Society Welfare Acts) that | provides or is intended to provide either or both of the following, that is to say (i) Benefits for a person who is a 204

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application is made under sub-sections 2 or 3 of Section 12 or under Section