The Gazette 1996

GAZETTE

JULY 1996

Practical points about the making of

a Pension Adjustment Order

Certain essential facts and information

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

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

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.

Notice to Trustees

Practitioners will have to be aware

that it is provided under Section 12

(18) of the 1995 Act that when an

application is made under sub-sections

2 or 3 of Section 12 or under Section

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

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

sub-section 20 is basically an Order

giving the Trustees such directions as

J the Court thinks appropriate for the

purposes of the Pension Adjustment