The Court of Appeal have just upheld the decision of Moylan J to use Pension Sharing as an enforcement mechanism. This is good news as in the right case this will be a useful tool to have available.
In the latest case of Amin v Amin  EWCA Civ 1114, Moylan J gave the husband the opportunity to pay a lump sum of £350,000 to the wife within a certain time frame on the basis that once the payment was made the judge was likely to make a pension sharing order to divide his pension equally between the parties. Otherwise, the judge warned him that he would be looking at a larger pension sharing order. His pension was worth £770,000 at the time so this was an important consideration.
In the event the husband didn't take any steps to make the payment, so when the matter came back before Moylan J for enforcement, he awarded the wife 76% of the husband's pension, taking into account almost £27,000 of interest on the lump sum, plus a lump sum payment of £150,000 to top this up. The husband appealed.
The Court of Appeal had little sympathy for the husband's arguments against the order, even his argument that his pension fund now had a value of £950,000 (an increase of £180,000). They found that Moylan J had carefully structured his initial order and given that the husband paid nothing to the wife (and still hadn't made any payment 3 years later) his second order was perfectly proper.
Pension schemes are often some of a couple's most valuable assets and are important for the future financial security they represent.
They are a useful resource when structuring a financial settlement on divorce, given that they can be shared or if the scheme holder would ideally prefer to keep their pension then a valuable scheme can be used to offset money that the other party receives from their savings, for example towards buying a house.
It is so important that all of these options are taken into account and the right arrangements put in place, which is only possible through experienced legal advisers who provide creative solutions, working with qualified pension advisers who can provide the relevant information and analysis where appropriate. Far too often I see assumptions being made about pensions that could result in a disadvantage for one or both of the parties, when they could provide a valuable resource instead.
For more information please see our guide at http://www.freethsoxford.co.uk/divorcepension or contact me on 01865 781115 or by email at email@example.com
13. The attack on the judge’s exercise of discretion in utilising part of the pension fund by way of enforcement is, in my judgment, quite hopeless. What else was Moylan J to do? He had carefully structured the order of 1 April 2014 so as to enable the husband to raise the lump sum by way of recourse to other assets, whilst making it quite clear that, in the event of non-payment, he (the judge) might have to have recourse to the pension fund by way of enforcement. The husband paid nothing – in fact to this day he has paid nothing – and the pension fund was, by then, the only significant available asset within the jurisdiction. In these circumstances it was perfectly proper for Moylan J to proceed as he did.