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Pension offsetting: is a consistent approach possible or even appropriate?

Date:8 FEB 2017
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Pension expert

This paper examines the position of the courts, pension experts and lawyers in terms of their valuation of pensions for offsetting in financial remedy proceedings.

It compares the different treatment of pensions in the judgments SJ v RA [2014] EWHC 4054 (Fam), JS v RS [2015] EWHC 2921 (Fam), [2016]  Fam Law 16 and WS v WS [2015] EWHC 3941(Fam), [2016]  Fam Law 564. It contrasts the treatment of pensions in these three judgments (all of which differ from each other) with the view of how pensions should be treated according to the pension experts.

The paper draws upon the work undertaken by Mr Rhys Taylor in Pensions on Divorce: Another Witches Brew and the Family Justice Council document entitled Sorting  Out Finances on Divorce. It suggests that the field of pension offsetting is a mess, with judges asking for guidance, solicitors unsure what to ask for, and experts not knowing what is expected of them.

The author explores the various ways pensions have been valued for offsetting purposes and the reasons why different approaches have been taken, in an attempt to answer the question whether a consistent approach is possible or even appropriate. The paper identifies the circumstances in which it may be able to find a common approach but argues that much more work needs to be done by all parties to alleviate the current unsatisfactory position, where the solution reached by the Court is little more than a lottery, and that a debate and rigorous testing of the various positions may help reach a welcome consensus.

The paper concludes:

‘In February 2013, whilst addressing the annual dinner of the FLBA, the President of the Family Division touched on the problems of litigants in person.  Sir James Munby said, “The courts will have to identify innovative ways of handling large numbers of litigants in person; the legal profession will have to think of innovative ways to assist those who no longer have public funding.” If we as experts, both legal and pensions are struggling with the concept of offsetting, what hope is there for the thousands of litigants in person going through the courts? 

As part of that call for “innovative ways”, we need a serious high level debate between all interested parties on the subject of valuing pensions for offsetting. Writing articles in Family Law is all well and good, but it does not allow for a rigorous cross-examination and defence of the arguments. If such a debate between all of the interested parties can result in greater commonality of approach between the various positions of the various experts, and greater commonality of approach between the experts, judiciary, and lawyers, then the current wholly unsatisfactory Lottery of Outcome, and the comments of Sir Peter Singer [1] will become issues of the past.’ 

[1] ‘I  am aware from my general reading that there is at present debate but as yet no conclusion on precisely this topic of appropriately arriving at an offsetting  figure. I am not aware from my own knowledge nor have I researched what the  competing methods might be. I am thus left in the unsatisfactory position where  I must alight upon an amount which will necessarily be arbitrary.’ (JS v RS)

The full version of this article appears in the February 2017 Family Law – Pensions Special Issue. 

Online subscribers can access the article here.

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