Summary

HHJ Farquhar. Application by husband (applicant) to set aside a pension sharing order (PSO) under the Thwaite jurisdiction due to the wife’s sustained non-compliance. The court held that continued enforcement of the PSO would be inequitable given the respondent’s conduct, the applicant’s age and deteriorating health, and the executory nature of the order. The judgment includes a detailed analysis of the contrast between the Thwaite and Barder doctrines and affirms the court’s discretion to intervene where implementation has been obstructed post-order.

Background

The parties married in March 2015 and separated in February 2020. A final consent order was approved in April 2023, providing for:

• the sale of the former matrimonial home, with proceeds divided 47% to the husband and 53% to the wife; and
• a pension sharing order awarding the respondent 48.94% of the applicant’s Aviva pension (CE value approximately £193,000) ([6]).

Despite agreeing to the terms, the respondent failed to complete the pension provider’s implementation forms, notwithstanding that the pension share was in her favour. Multiple reminders were issued, including a direct application by the applicant in July 2023 ([9e]), and court orders by DDJs Jabbour and Nicholes requiring compliance by fixed deadlines ([9f], [9l]). The respondent provided minimal engagement and failed to follow through, stating at one point that the pension ‘has already been implemented’ when it had not ([9k]).

The applicant, now aged 70 and in poor health, remained unable to retire or draw the Aviva pension due to the PSO remaining in force but unexecuted. He sought to set aside the PSO.

Legal principles: Thwaite jurisdiction

In Thwaite v Thwaite [1981] 2 FLR 280, Ormrod LJ confirmed that where an order remains executory (not implemented yet), the court may refuse to enforce it if, at the time of the enforcement, it would be inequitable to do so ([24]).

The principle was reaffirmed by the Court of Appeal in Bezeliansky v Bezelianskaya [2016] EWCA Civ 76, where McFarlane LJ observed that the circumstances justifying intervention are likely to be met ‘where an order remains executory as a result of one party frustrating its implementation’ ([26]).

The applicable test, set out by Lieven J in Kicinski v Pardi, and adopted here at [32], requires the court to consider:

1. whether there has been a significant and relevant change of circumstances; and 2. whether it would be inequitable not to set aside or vary the order.

The court found both limbs satisfied: the parties had cooperated at the time of the agreement, but the respondent’s post-order conduct had become completely obstructive ([34]–[35]).

The fact that the PSO could not be implemented because of the respondent’s conduct was a significant change since the time of the order. Not setting aside the PSO would now be inequitable, particularly given the applicant’s age, financial dependency on his pension, and health deterioration ([36]–[39]).

While acknowledging the adverse impact on the respondent – who stood to lose pension benefits worth approximately £94,000 – the judge held that the consequences flowed solely from her own refusal to engage.

HHJ Farquhar aligned with the reasoning of HHJ Reardon in H v W [2023] EWFC 120, who affirmed that Thwaite provides a legitimate and necessary tool where one party deliberately frustrates compliance ([30]). The court reiterated that Thwaite is not about revisiting fairness with ‘fresh eyes’, but rather preventing injustice after the order is made. ([31]). The court also cited Hersman v de Verchere [2024] EWHC 905, where Moor J described the existence of such jurisdiction as essential to prevent a ‘cheat’s charter’ ([28]).

The respondent was given one final opportunity to comply:

‘if you do not provide the information your ability to obtain this pension benefit will be lost forever.’ ([41])

Other options considered:

• Although the court considered whether to rebalance the property division to compensate the respondent for loss of the pension share, it concluded that there was no jurisdiction to do so in the absence of an application. ([40]).
• The applicant initially applied to vary the PSO to nil, but this was not legally available. Under s 31(2)(G) MCA 1973, variation of PSO is only possible before the order takes effect and before the final divorce order is granted. Here, Decree Absolute has been pronounced in January 2021.
• The court considered whether a pension attachment order (PAO) could be substituted to allow the respondent to receive an ongoing share without needing to take steps herself. This was rejected, as it:
  • contravened the parties’ clean break;
  • would require setting aside that clean-break (no such application made); and
  • introduced complexity where the core problem was the respondent’s non-compliance ([44]).

Costs

The court awarded the applicant £20,000 in costs, reduced from £30,116.22 sought. The reduction was due to part of the costs relating to the misconceived variation application, which the court had no jurisdiction to entertain. The error should have been identified earlier by the applicant’s legal team. Nonetheless, the respondent’s obstructive conduct was the principal cause of the proceedings and costs.