(Family Division, Mostyn J, 4 November 2016)
Financial remedies – Pension sharing – Overseas pension – s24B, Matrimonial Causes Act 1973
The wife’s application for a pension-sharing order failed in limine.
In financial remedy proceedings following divorce the husband was ordered to transfer his interest in an Indian pension fund to the wife. The judge dismissed the husband’s claim that he had transferred his interest to a third party. The wife had previously been awarded a lump sum of £19,000.
The Court of Appeal set aside the pension order and directed that a rehearing should take place.
Mostyn J held that pension sharing under s 24B of the Matrimonial Causes Act 1973 could not be ordered in relation to a foreign pension. It was a basic rule of statutory interpretation that, although an enactment might be expressed in general terms, the area for which it was law, had to exclude territories over which Parliament lacked jurisdiction. The authorities plainly upheld the proposition that there was a presumption against extra-territoriality. The application of the presumption against the extra-territorial effect to the powers under s 24B was an inescapable reading of the legislation as a whole and was reinforced by the procedural rules applicable to pension sharing. That procedure could only work in the context of the sharing of domestic pensions.
Other routes could be adopted to achieve direct sharing of a foreign pension but the court had to be satisfied that the foreign pension provider would give effect to any agreement or consent order. In this instance the wife had not provided any evidence that a pension sharing order would be likely to be enforced in India.
The wife’s application failed in limine.