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Comparing apples with pears – pension offsetting


The courts have had power to order pension earmarking and pension sharing for twenty years. However there is often difficulty because cash, houses and pension are such different types of assets. Arguments take place about disadvantage arising from one party being stuck with long term pension savings or the other having to live in the main asset and unable to realise it. It is not always easy to compare apples with pears in a way that satisfies all.

A further problem is that owing to the cost of appeals many cases are “big money” so are not always easily applicable in everyday life. Unusually there have been a couple of recent “real world” decisions.

In RH –v- SV (Pension apportionment: reasons) 2020 the judge has given encouragement to the use of a broad brush saying:-

“I do not consider that there I anything inherently wrong with aggregating the values of capital and pension assets for the purpose of comparison, provided that it is recognised that this is not a comparison of equal values. Provided it is recognised that the orchard provides different types of fruit it is not wrong to look at the division of the total crop. The continuing income position must also be considered in assessing fairness.”

In W –v- H (divorce financial remedies) 2020 in appropriate needs cases the court has also taken a shot at arguments favouring the ring fencing of pre-marriage pensions observing that if a case “…falls short of producing a surplus over needs, then it is difficult to see the excluding any portion of the pensions has justification…”

If you or someone you know has a problem with pensions on divorce we will be pleased to help you to negotiate a way through the difficulties.

(With acknowledgment and thanks to Rhys Taylor and Jonathan Galbraith; Family Law December 2020)

Ian Stirzaker

Ian is the Senior Partner and Head of Family Law at SME Solicitors. Please contact him, Joanna Gardner or Denise McCabe for specialist help and advice in all aspects of family law at ian.stirzaker@smesolicitors.co.uk or joanna.gardner@smesolicitors.co.uk or denise.mccabe@smesolicitors.co.uk  

Added: 16 Feb 2021 09:37


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