Financial Remedies Journal: KM v CV (Pension Apportionment: Needs) [2020] EWFC B22

KM v CV (Pension Apportionment: Needs) [2020] EWFC B2225 February 2020

Published: 21/02/2022

Polly Morgan | Case EditorPolly is the sole author of the textbook Morgan's Family Law (Oxford University Press 2021) and contributes the chapter on financial remedies to Lamont's Family Law (2nd edn Oxford University Press 2022). An associate professor at UEA Law School, Polly is also Director of the multi award-winning UEA Law Clinic. A solicitor and law firm co-founder, she now practises exclusively in the free family law advice clinic of Norfolk Community Law Service. She is a Transparency Project committee member, former Chair of collaborative pod Good Divorce Group Norfolk, and a former committee member of the Norfolk & Norwich Law Society and Norfolk Resolution.

https://www.bailii.org/ew/cases/EWFC/OJ/2020/B22.html

HHJ Robinson. Appeal in relation to a financial remedies decision concerning pensions, post-separation accrual, and need. The outcome of the hearing was the case was remitted; the final decision from 2022 is summarised here Financial Remedies Journal: KM v CV [2022] EWFC 174.

H appealed from decision of district judge to dismiss his applications for sale of the FMH and a pension sharing order. He had mental health difficulties and was in receipt of benefits. W had a police pension with a CETV of c.£131k, but there was no PODE report. She argued that 7 of the 15 years for which she had the pension were post-separation, the parties having separated in 2011.

Judge considers whether a pension is capable of being a non-matrimonial asset and the relationship to needs and other s 25 criteria by reference to Waggott v Waggott [2018] EWCA Civ 727; Hart v Hart [2017] EWCA Civ 1306; IX v IY [2018] EWHC 3053 (Fam) and C v C [2018] EWHC 3186 (Fam), noting that none of them deal with pension sharing in a lower income case or run counter to the PAG Report guidance. The DJ was wrong to value the pension as at separation in 2011 (see S v S and Rossi). While it may be relevant to apportionment that was not the correct starting point. This was a needs case. The judge had been led into error by an overemphasis on the non-matrimonial accrual of part of the pension and of contributions over needs. The correct approach must be to conduct a comparative analysis of the parties’ respective income and needs in retirement, taking into account all of the s 25 criteria, including health, needs, and contributions, and the extent to which the wife’s pension should be apportioned.