Recorder Hames KC: Appeal against PSO out of time following death of W allowed and substituted by lump sum order to reflect lost benefit to the Estate for the benefit of the children.

H applied to appeal out of time in respect of a pension sharing order (PSO) following the death of W. All parties agreed permission to appeal should be granted and the PSO should be set aside, the same having not yet been executed. However, as a condition of the set aside, the Estate argued a further lump sum payment of £51,480 should be ordered against H, representing the value the Estate would stand to benefit from the PSO were it to be executed.

By the time of the hearing, the Estate agreed the payment of the lump sum should be deferred if H could provide security of the sum until the youngest child, now 15, attains 21 or ceases full time education up to first degree, and to include any gap year.

By Will and expressions of wish, W had made provision for her estate to be held on trust for the benefit of the parties’ three children.

H argued a lump sum should not be ordered because the PSO was not about sharing resources, but to provide income in retirement for W which would no longer be required.

Held

1. The order for a PSO was not made solely based on meeting income upon retirement. It was clear from the judgment, there was both a sharing element and entitlement element to the order. At first instance, there had been no argument by H that his pensions were pre-marital or should be ringfenced just for need.
2. In the event he was mistaken, the court accepted the principle affirmed by the Supreme Court in Unger & Anor v Ul-Hasan, decd & Anor [2023] UKSC 12 that: ‘A wife with few or no needs, who has nonetheless made a significant contribution to the marriage, has in my judgment a right to recognition of that contribution in money terms where there are assets available to meet it so long as the court does not act to the unjust detriment of the other spouse.’ It would be unjust to the estate, and ultimately the parties’ three children, if the court did not make the lump sum order and deprived them of every aspect of the PSO ordered.

The court ordered the lump sum payment and allowed H six months from the sale of the FMH to provide security, either by way of purchase of alternative property or by some other means, such funds to be retained by solicitors with conduct of the sale of the FMH. In the event security was not provided within the six-month period, it was to be paid forthwith from the retained funds.