Book Review: Pensions on Divorce

Published: 07/03/2025 15:15

https://classlegal.com/products/pensions-on-divorce-a-practioners-handbook-4th-edition

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The 3rd edition of this handbook appeared in 2018, stating the law as at January 2018, and so a new 4th edition is to be heartily welcomed. The 7-year interval has seen two reports from the Pension Advisory Group (in 2019 and 2024), important reforms to pensions taxation legislation and changes to public sector pensions brought about by the McCloud litigation. Two members of the previous author team, Fiona Hay and David Lockett, have retired to be replaced by Joe Rainer and Jonathan Galbraith, respectively.

As Mr Justice Peel observes in his enthusiastic foreword, ‘the jurisprudence on pensions remains limited’. ‘The Court of Appeal has not opined on pensions in any meaningful way since Martin-Dye (2006)’, one possible exception being Finch v Baker (2021). In the main, it has been left to the district and circuit bench to develop the case law, an increasing number of decisions which are now usefully reported. Many of these decisions come from HHJ Edward Hess himself (e.g. W v H (Divorce: Financial Remedies) (2020), T v T (Variation of a Pension Sharing order and Underfunded Schemes) (2021) and SP v AL (2024)). The High Court has largely been silent (one exception being CMX v EJX (2022)) because (as 10.4 puts it) in cases allocated to this level ‘the pension does not hold the balance of fairness’. Guidance may still be needed from the High Court or above on the three critical issues identified by HHJ Hess in W v H and which confront practitioners on a regular basis, namely, whether to divide pensions according to capital or income value; whether to exclude pension assets acquired before marriage (i.e. apportionment or ring-fencing); and whether to treat pensions separately or whether to offset. All of these issues are carefully and lucidly explained, and it is suspected that Chapter 10 will be the most frequent source of reference for many readers.

It must be said that at the outset this handbook remains the foremost single volume work on pensions and divorce. Its target audience is primarily the financial remedy practitioner and the pensions on divorce expert (PODE). Throughout it adopts a welcoming style that renders sometimes complex subject matter easily accessible. Given the target audience, the authors recognise the need to restrict the scope of the work so as to highlight only the basics of pensions law and related taxation, of which the family lawyer should be aware. In identifying where the boundary should lie, the work is largely successful.

The new edition follows, in the main, the logical structure of the previous edition apart from the omission of a discrete chapter on civil partnerships (now sensibly relocated as a comparative table of statutory sources in the Miscellaneous Materials (D2.6)) and the merger of the two chapters dealing with Cash Equivalents. Its four sections cover law and procedure (Section A), the 16 chapters of which contain the bulk of the text, while the Actuarial Section (Section B) gives improved, restructured coverage of the shorter and longer career public sector pension schemes with full discussion of the implications of McCloud, as well as extended coverage of certain private sector pension schemes. Section C contains a wealth of the relevant statutory material relating to both family law and pensions law, whilst Section D contains vital Miscellaneous Materials ranging from the newly-added Galbraith tables to a state pension age calculator, not to mention relevant Forms and Standard Family Orders. What is particularly helpful is the use of summaries and practice points throughout the text. The work has excellent preliminary tables and is well-indexed.

Inevitably, there might be a few quibbles. Chapter 2 might benefit from some discussion of benefit structure as well as an explanation of the different legal structures for pension schemes, including extended coverage of, or signposting to, SSASs, Unapproved Schemes (both discussed in Chapter 12) and approved international schemes (Chapter 15). Strangely, there is no discussion of Master Trust pension schemes or auto-enrolment/NEST. It might have been helpful to the reader for the discussion of income gap syndrome to be concentrated in a single location rather than dealt with separately in a number of different chapters (4, 12 and 13). There are a number of references to Blight v Brewster orders (9.7, 13.30, 15.15, 15.24 and 16.8) without any mention of the fact that this approach is now restricted to personal pensions (and not occupational pension schemes) following the important decision of the Court of Appeal on the interpretation of Pensions Act 1995, s 91 in Manolete Partners PLC v White [2024] EWCA Civ 1418. The clear discussion of moving target syndrome would benefit from an analysis of the determination of the Pensions Ombudsman in Mr S v Fidelity (2024) (cited in the table of cases at 14.29), which adds more ripples to an already clouded pool. In the discussion on intra-UK pension issues (15.35–15.36), a view on the potential use of Civil Jurisdiction and Judgments Act 1982, s 18 and Sch 6 and CPR 1998, Part 74 would have been welcome. However, all of these are very minor issues when viewed against the very broad canvas covered.

It remains to be seen what reforms may emerge from the Law Commission’s Scoping Report: Financial remedies on divorce (Law Com No 417, 18 December 2024), which is alluded to briefly at 10.3 and which considers whether pension sharing should be the default position or at least whether there should be explicit mention of pensions as one of the statutory factors for consideration. In the meantime, weighing in at a mighty 610 pages, this is a book no financial remedies practitioner, PODE or Financial Remedies Court judge can afford to be without. It is easily accessible for the inexperienced and reassuringly helpful to the advanced practitioner. It describes itself as a practitioner’s handbook and that is exactly what it is: a book you need by the side of you in the office/chambers and which can easily be taken to court. Don’t hesitate.

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