The Treatment of Pensions on Divorce PURSUING THE PENSION CLAIM - ESSENTIAL PROCEDURAL STEPS Copyright Sarah Marley May 2002-All rights reserved. No part of this document may be copied or used without the written permission of the author.

(Petition issued after 1.12.00)

The Family Proceedings Rules 1991 (rule 2.70) provide very clear guidance as to the procedure to be followed where an application is made for pension sharing or pension attachment orders and also as to the information to be provided by the party with benefits under a pension arrangement whether or not pension sharing or attachment is applied for.

The application for pension sharing / pension attachment
When acting for the Applicant for financial relief it is important to ensure that the application for pension sharing/attachment is made in the Prayer for relief in the petition or answer (rule 2.53(1)). If the claim is not made in the petition, in the absence of agreement as to the terms of the order, it will be necessary to seek the courts leave to make the application. (Rule 2.53(2)).

When notice of intention to proceed with the application for ancillary relief is given in Form A, where orders are sought under sections 24B, 25B or 25C, the terms of the order requested must be specified. (Rule 2.61A(3)). Ticking the relevant box is not therefore sufficient although one might be deceived into thinking this, given the limited space provided on the Form A! Where possible, when full details of the Respondent's pension scheme is available, it is advisable to provide details of the scheme/policy number in the Form A along with details as to the orders sought under sections 24B (pension sharing), 25B and 25C (pension attachment) given that this has to be served on the pension provider (see below).

What next?
A copy of the Form A must be served on the relevant pension provider(s). (Rule 2.70(6)). (Where a request for a pension sharing / attachment order is made later (for example, where it only becomes apparent on receipt of the Respondent's Form E that he has pension provision) the amended Form A must be served on the relevant pension provider).

Additionally, where a pension attachment order is sought, the pension provider must be served with:

• an address to which any notice required to be served on the Applicant under the Divorce etc (Pensions) Regulations 2000 is to be sent
  

• an address or bank / building society details for payment purposes. (Rule 2.70(7))

It is important that service is effected promptly - the person responsible for the pension arrangement may, within 21 days of service of the Form A, ask the Applicant to provide a copy of section 2.16 of the Form E. If such a request is made, the relevant part of the Form E must be forwarded to the pension provider within the time period for filing the Form E or within 21 days of the request, whichever is the later. The pension provider may then file a statement in answer (this must be done within 21 days after receipt of a copy of section 2.16 of the Form E) in which case the pension provider will be entitled to be represented at the First Appointment.

Acting for the Person with pension rights
When acting for "the party with pension rights" (usually the husband), it is important to ensure that, unless the client has already been provided with a "relevant valuation" (which must be not more than 12 months old at the date of the First Appointment), or has requested such a valuation, a request is made to the pension provider for the information specified in regulation 2(2) and 3(b) to (f) of the Pensions Divorce etc (provision of Information) Regulations 2000 within 7 days of receiving notification of the date of the First Appointment. The information required, in summary, is as follows:

• A valuation of pension rights or benefits accrued under the pension arrangement (the CETV)
  

• A statement summarising the way in which the valuation is calculated
  

• The pension benefits which are included in the valuation
  

• Whether an internal transfer will be offered to the person entitled to a pension credit, and if so, the types of benefits available to pension credit members under the arrangement
  

• Whether the pension provider intends to discharge its liability for a pension credit other than by offering membership to a person entitled to a pension credit
  

• What the charges will be.
  (FPR 1991, rule 2.70(2))

The information provided must be sent to the other party, together with details as to the name and address of the person responsible for each pension arrangement, within 7 days of receipt. (Rule 2.70(3)). All documents forwarded by the pension provider must then be attached to the Form E. (Rule 2.61B(3)(c)).

Rule 2.70(2) must be observed, subject to rule 2.70(4), even where no application is made for a pension sharing or pension attachment order. Although the rules provide that such a request does not have to be made where a relevant valuation has been received or requested from the pension arrangement, it is important to ensure that sufficient information is available in order that the First Appointment can be utilised as an FDR, if appropriate.

Why is it important to ensure that you get the procedure right?
Once all relevant information is obtained and the pension providers have been served, the court is able to consider whether it is appropriate to make the orders sought. The court cannot make pension sharing / attachment orders unless the application has been properly made and the pension arrangement properly served.

Given that the pension may be one of the largest assets in the case, it is important not to overlook the above, particularly when acting for the Applicant (wife). Offsetting will not necessarily provide an answer, particularly where there are insufficient "liquid" assets to meet the parties' immediate needs and where flexibility is therefore required!