The Gazette 1996

GAZETTE

JULY 1996

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

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

a Pension Adjustment Order?

.Practitioners should note the

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

Acts, 1868/1876 and the Guardianship

and Infants Act, 1964.

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

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.

Practitioners must, therefore, carefully

assess all of the family assets to see if

adequate provision can be made under

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.

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