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Jade Quirke
Jade Quirke
Family Solicitor
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Twenty-four may be a big number
Date:3 AUG 2016
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Queen's Counsel

Rhys Taylor has recently published Another Witches’ Brew his definitive paper on pensions and divorce. Many compliments can be paid, including the apparently oxymoronic comment that it is 76 pages long and concise. It is certainly the product of many hours of productive work.

Things were very different in years gone by, the days when the senior practitioners such as the late Jeremy Tatham referred to the 1973 Act as the ‘new law’. Sometime in the 1980’s I did an ancillary relief case in the Bath County Court where the husband was a full time GP and my client, the wife, was a part-time GP. The papers included a statement of the husband’s pension rights obtained, as was customary at the time, to assess the loss of the widow’s pension. Despite that, the NHS form also gave the transfer value of the husband’s fund. If I remember rightly, it was about the same figure as the equity in the FMH and much larger than the wife’s fund. I argued that this might have some bearing on whether the husband’s interest in the house should be transferred to my client. The registrar took a different view. He said that he had never heard such an argument before. There was, I suspect, the inference that the argument reflected my inexperience.

Over the following years I thought about pensions from time to time, in part because there seemed a move towards elevating their importance in applications for ancillary relief. In January 1992 I first encountered an expert’s report on pension rights (H v H (Financial Provision: Capital  Allowance) [1993]  2 FLR 335 (a case in which I represented the husband and not the wife as stated in the report)). Thorpe J (as he then was) gave the report relatively short shrift at pages 343-344, though paras B-C on page 344 have a certain contemporary flavour of post separation accrual. Perhaps H v H encouraged me to give a paper on pensions later the same year. By chance I recently unearthed the text which is being published with this Note. That was so long ago that people did not know that Nicholas Mostyn (as he then was) is good with figures; I had to tell them (see page 8). It was also the year of the Barcelona Olympics at which Great Britain came 13th in the medal table sandwiched between Italy and Romania.

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Mostyn J remains enviably numerate, but much else has changed since 1992. I do not think my October 1992 paper was that bad when delivered, but it has not aged well. On page 6, I refer to grave financial hardship as a defence in a 5-year separation suit and to s 10 of the 1973 Act. On the following page I deal with loss of widow’s pension. These all seem a different world from the one explored by Rhys. At page 9, I refer to the imbalance of pension rights and describe it as ‘the most difficult and interesting interaction of pension provision and (the (I should have picked that up twenty four years ago)) ancillary relief criteria’. Presumably my reference on page 10 to ‘calculating’ the transfer value of a pension fund was born from experience and there were cases in which it was not available. It is a long way, well I suppose it is 24 years, from there to the analysis of valuation in Rhys’ paper. When I gave my paper H v H (ante) had not been reported so I could not refer to it. As a result I only referred to two authorities in the final part of my paper. The first was B v B (Financial Provision) [1989]  1 FLR 119. Looking at the case again (for the first time in 24 years?), I see that my text requires a late correction as Anthony Lincoln J expressly rejected the argument for pension provision at page 123 para H. That passage might now be seen as an offsetting of capital against pension, though I doubt if it was then. Hedges v Hedges [1991]  1 FLR 196 was about imposing a clean break and Mr Hedges’ pension was seen as so remote that it was only a ‘piece of the background’, though there was compensation for loss of the widow’s pension. Interestingly the Court of Appeal endorsed the judge’s decision to make an 18-month term on the basis that it would ‘keep the appellant afloat until she was able to move from temporary work into better paid employment’ (see para H at page 203). Even allowing for the marriage being childless that proposition may have a contemporary resonance. It may be that all those years ago the judges were more at ease in applying the 1984 clean break amendments, but answering that question would require research.  On page 11 I refer to discussing examples, but I cannot trace them. I have no clear recollection of what they contained, though I am sure they were more rudimentary than those worked through by Rhys.

Financial work has certainly become more refined. That may make it more expensive, but many good things come at a price. In our papers Rhys and I both consider the same legislation and, broadly speaking, the same pension structures, but one paper is comprehensively useful and the other is now quite useless. As a side wind this may show that the judges do not require legislative change to keep the law up to date.

The original Pensions paper is available to download here.

Valentine Le Grice QC is a silk at 36Family. Follow him on Twitter @ValLeGrice.