The Gazette 1996

GAZETTE

JULY 1996

Order including directions which would involve non-compliance with the rules of the scheme concerned. Further information Sub-section 25 is useful in that it provides that the Court may, of its own motion, or if requested by either of the spouses or any other person concerned, direct the trustees to provide the following:- A. A calculation of the value and the amount of the retirement or j contingent benefit concerned that j is payable under the scheme and has accrued at the time of making the Order and B. A calculation of the amount of the contingent benefit concerned that is payable under the scheme. Although Trustees should presumably give this information without the necessity of a formal order under sub- section 25, it would appear from my j reading of the Act that even if j Trustees unreasonably delayed in | furnishing the information they would still be entitled to their costs under the j provisions of sub-section 22. Expert Assistance Practitioners would also have to j obtain expert advice as to whether the j applicant should leave the benefit designated by the Pension Adjustment j Order within the scheme, or apply under sub-section 5 to have the designated benefit split from the | member's benefit. If it is decided that | it will be in the applicant's benefit to have the designated benefit split from the member's benefit then a formal j application under sub-section 5 may j 1 be made to the Trustees at the time of | the making of the Order or at any time , thereafter to have the split arranged in j accordance with sub-section 5. ! Practitioners should be aware that sub-section 6 provides that where the j Court makes an order under sub- section 2 in relation to a defined contribution scheme, and the applicant j has not brought an application under sub-section 5, then the Trustees may, notwithstanding, apply the transfer ! j

amount to another occupational pension scheme or other approved arrangement, as may be determined by the Trustees. In a defined contribution scheme the Employer and the Employee pay a defined percentage of the Employee's pay into the Employee's Pension account which is then invested by the Trustees of the Scheme. The Employee's Pension at retirement will be whatever can be bought with the • account proceeds at that point. There is no guaranteed benefit as such. Self employed arrangements are akin to defined contribution schemes, except that employers cannot contribute to such arrangements. In defined benefit schemes a specific level of pension is promised to the Employee at retirement, usually by reference to salary at or near retirement and to service completed. The benefit is defined in advance and the Employer and (usually) the Employee must make sufficient contributions to meet that promised benefit at retirement. For example the typical private section defined benefit scheme promises a pension of 160th of the final pensionable salary for each year of company service. Public Section schemes are on a 180th basis, with an additional cash gratuity. As will have been seen the Family Law Act treats defined benefit schemes and defined contribution schemes differently. Finally Sub-section 21 provides that the Registrar or clerk of the Court concerned shall cause a copy of the Pension Adjustment Order to be served on the Trustees of the pension scheme concerned. Not every pension scheme will have Trustees, for example, the Civil Service and Semi-State Schemes. However, because of the wide definition of the word "Trustees" in Section 12, in relation to a pension scheme which is not established under a trust, "Trustees" means the persons who administer the scheme.

Conclusion It will be clear from the above that practitioners should carefully consider the provisions of each pension scheme concerned and of Section 12 of the 1995 Act before seeking a Pension Adjustment Order as ancillary relief to an application for a Decree of Judicial Separation. Although this new concept in Irish law contains complicated aspects with which practitioners have not been accustomed to cope until now, I believe that the Pension Adjustment Order will be a valuable asset for dependant spouses particularly with the arrival of divorce. Section 13 Section 13'of the 1995 Act provides that on granting a decree of Judicial Separation or at any time thereafter the Court may, in relation to a pension scheme, on the application of either of the spouses concerned, make during the lifetime of the spouse who is the member of the pension scheme, and order directing the trustees to the scheme not to regard the separation of the spouses resulting from the Decree as a ground for disqualifying the other spouse for the receipt of a benefit under the scheme, a condition for the receipt of which is that the spouses should be residing together at the time the benefit becomes payable. Notice of the application shall be given by the spouses concerned to the trustees of the pension scheme, and the Court representations of any other person specified by the Court. Any costs incurred by the Trustees shall be borne by either of the spouses or by both of them in such proportion and manner as the Court determines. The Court may make an order under Section 13 in addition to or in substitution for orders under Sections 8 to 11, and in deciding whether or not to make such an order the Court shall have regard to whether adequate and reasonable financial provision exists or can be made for the spouses concerned by orders under Sections 8 to 11. shall have regard to their representations and to the

i

j j '

j

205