Financial Remedies Journal: W v H (Financial Remedies: Pensions) [2021] EWFC 63

W v H (Financial Remedies: Pensions) [2021] EWFC 6314 September 2021

Published: 16/06/2022

Stephanie CokerStephanie Coker is a barrister at FOURTEEN. She specialises in financial remedies following the breakdown of a relationship (including TOLATA matters), complex private children matters and international family law. Outside of practice, she was awarded a PhD and has acted as an Associate Lecturer where her teaching responsibilities spanned across family law, land law and foundations of property.

https://www.bailii.org/ew/cases/EWFC/OJ/2021/B63.html

Recorder Salter.

Modest assets. Case involved pensions, third-party property, excessive litigation costs and jurisdiction of the court to make an order for child maintenance where the care of a child was shared equally between the parties, and thus there was no non-resident parent; [36–38]. Case also details the approach of the court to cohabitation including the application of the Kimber v Kimber [2000] 1 FLR 383 criteria, and the impact of any findings of cohabitation on the outcome of the case.

The application of the Pensions Advisory Group’s Guide to the Treatment of Pensions on Divorce was considered when determining the appropriate approach to pensions. The judge reflected on the problems inherent with pension offsetting. The concept of ‘deferred offsets’ was considered, which involved the W offsetting her entitlement to a share in H’s pension against sums she may potentially receive in the future in her mother’s home. The judge observed that whilst deferred offset was not an approach he had previously encountered, he could not ‘see any objection to it in principle providing the amount in question and timing of receipt are both certain so as to be capable of being factored into the actuarial equation’; [92]. This was not the case here, and it was decided to equalise pension incomes.

The problem posed by ‘moving target syndrome’ was recognised by the judge. However, the judge noted that the parties had not sought an updated pension report, and inevitably there would have been a delay between the date of the PSO and its implementation [106] (Moylan LJ’s comments in Finch v Baker [2021] EWCA Civ 72). Finally, whilst W was receiving child benefit the evidence established that the care of the child was shared equally between the parties. Therefore, an order for child maintenance was made calculated on a CMS basis but indexed to the CPI.