This blog is about an issue very close to my heart. Indeed, my concern about the treatment of pensions on divorce was what took me from my first career as a barrister at Coram Chambers to my second as a social gerontologist. I am very pleased to report, therefore, that under the leadership and joint chairmanship of Mr Justice Francis and His Honour Judge Edward Hess, the “Pension Advisory Group” (“PAG”) has been formed.
As pensions become increasingly visible in divorce cases, divorcing couples, their lawyers, and judges need to take real account of pensions as assets and potential income streams. In this light, many stakeholders in this field have identified a clear need to ensure more consistency in practice across the country, and to develop a consensus as to what good practice and appropriate outcomes ought to look like. Despite the complexity of pensions, there is little legal guidance on this issue, since few decisions concerning pensions on divorce are ever reported either at first instance or on appeal. Some helpful guidance has been provided by the Family Justice Council in its papers on financial needs on divorce, addressing litigants-in-person (April 2016) and the judges (June 2016), but, given their broader subject-matter, the guidance provided on pensions by these documents is necessarily limited in scope.
The Group and its brief
With the imprimatur of The President of the Family Division, the PAG’s brief is to conduct an interdisciplinary review of how pensions are treated on divorce and to produce a Family Justice Council pension guide for the profession and divorcing public. It is hoped that this may encourage a consistency of practice which is currently lacking. As with the Family Justice Council and its guidance on financial needs, the PAG is an advisory group with no authority to change the law through any of its publications, however will seek to explain the current law and to facilitate best practice.
The PAG comprises a multidisciplinary group of judges, academics, actuaries, financial experts, family and pension lawyers and a family mediator (see list of members below). The group has representatives of both the Family Law Bar Association and Resolution. In addition to involving several of the well-known experts who practise in this field of family law, the Institute and Faculty of Actuaries has also appointed a representative to be part of the PAG.
Led by Hilary Woodward, the academics’ contribution to the project, funded by a Nuffield Foundation grant, will assist in ensuring that the work of PAG is underpinned by objective and academically-defensible methods and analysis, and rooted in what is known from research about the longer term financial consequences of divorce.
The Group’s agenda and working method
PAG has identified three interlocking areas of work that have been allocated to three working groups, which will each report to the PAG:
- A legal working group will review legal questions and how the Matrimonial Causes Act 1973 s.25 discretion is applied in this context.
- A valuation and offsetting working group will look at the assumptions used by experts when valuing pensions and calculating pension sharing and offsetting outcomes.
- An expert working group will consider the question of what regulation, qualifications and/or expertise Part 25 experts should have assist the court. Consideration will be given to whether the use of a uniform technical standard might be advisable.
Evidently, the activities of the three working groups will overlap with each other, and so each working group will include individuals who are also members of at least one other working group. Each group will also include a cross section of lawyers, experts and academics.
It is anticipated that each working group will produce a paper identifying areas of agreement and, importantly, areas of contention. The working papers will then be subject to further analysis by wider focus groups, as part of the attempt to resolve or at least narrow areas of contention. Comments on preliminary conclusions will be sought from the judiciary and the profession generally. It is hoped that a final report and guide will be available by December 2018.
Your contribution is sought
To inform its work as fully as possible, the PAG would be very interested to hear from members of the judiciary, legal, actuarial and financial professionals, and those with a special interest.
To stay within manageable bounds the PAG’ s membership is necessarily limited. However, the PAG is keen to create a big tent, to listen carefully and engage widely. It hopes to receive contributions from those who may be able to provide insights on the way that the law is currently working and how practice might be improved.
If you are aware of situations where to your mind pension issues on divorce have not been resolved in a satisfactory fashion please let us know! You may get in touch by emailing Hilary Woodward at WoodwardHD@cardiff.ac.uk
Who we are
The core group consists of:
Mr Justice Francis, co-chair of the PAG
HHJ Edward Hess, co-chair of PAG and author of leading Pensions on Divorce textbook
David Salter, Pensions on divorce specialist solicitor, Mills and Reeve, Recorder and chair of LWG
Rhys Taylor, barrister and arbitrator of 30 Park Place, Cardiff and 36 Bedford Row, London
Hilary Woodward, Principal Investigator, former family solicitor and mediator, lead author of the first major study of the treatment of pensions in matrimonial cases: Pensions on Divorce: an empirical study (2014, funded by the Nuffield Foundation, administered by Cardiff University), currently Honorary Research Associate at Cardiff School of Law and Politics.
Debora Price, Co-Investigator, Professor of Social Gerontology, Manchester University,
Joanna Miles, Co-Investigator, Trinity College Cambridge, member of Family Justice Council working party on needs
Rosemary Hunter, Professor of Law and Socio-Legal Studies, FJC academic member
DJ Barbara Wright, Portsmouth County Court, representative of Association of District Judges
James Copson, Family Law Solicitor, Withers Worldwide
Pauline Fowler, Solicitor HFC, Resolution Chair of Property, Tax and Pensions Committee
Sarah Hoskinson, Family Law Solicitor, Burges Salmon
Mena Ruparel, Family Law Solicitor and Arbitrator, Mena Ruparel, representative of the Law Society
Philip Way, Family Law Solicitor, Mills and Reeve
Robin Ellison and Simon Tyler, Pensions Solicitors, Pinsent Masons
Fiona Hay, Family Law Barrister, Harcourt Chambers, London, co-author with HHJ Hess
Valentine Le Grice QC, 36 Bedford Row, London, representative of FLBA
Christopher Sharp QC, St John’s Chambers, Bristol, Family Law and Personal Injury QC
Dominic Raeside, Head of Family Mediation, Family Law in Partnership, Mediation member of FJC
Paul Cobley, IFA, Oak Barn Financial Planning
David Lockett, Actuaries for Lawyers
George Mathieson, IFA Mathieson consulting
Peter Moore, BDM
Kate Routledge, Collins Actuaries
Ian Sharpe, Government Actuaries Department, representative of Institute of Actuaries
Clive Weir, IFA, CW Pension Consultants
Geoffrey Wilson, Excalibur Actuaries
The PAG had its first meeting on the 12 June 2017 and aims to conclude its work by the end of 2018.