Financial provision – Pension rights – Treatment of pension funds as equal to capital funds – Failure to compare like with like – Husband’s prospect of receiving capital or income from pension fund deferred if not distant
[2001] EWCA Civ 858
Court of Appeal
Thorpe LJ and Bell J
8 May 2001
Financial provision – Pension rights – Treatment of pension funds as equal to capital funds – Failure to compare like with like – Husband’s prospect of receiving capital or income from pension fund deferred if not distant
The husband and wife had three children, in the shared care of their parents, alternating week and week about with each. Both were providing a home for the children, seemingly to the benefit of the children. The order of the district judge gave the wife the whole of the equity in the matrimonial home, about £26,000, and a policy of insurance worth about £6,000. The husband retained another policy, worth about £4,000 and his pension, with a cash equivalent transfer value of about £32,000. The husband was 41 years old. The husband sought to challenge the order on the basis that his subsequent unemployment was a Barder event. The circuit judge denied the husband a fresh hearing, and on reviewing the district judge’s order declined to interfere with it, on the basis that it was conventional and had resulted in a rough equivalence.
Held – granting the husband permission to appeal out of time against the order of the district judge, and inviting the parties to consider submitting outstanding issues to mediation by a pro bono mediator –
(1) The judge had been right to reject the appeal based on Barder v Caluori, as unemployment was not an unforeseen and fundamental supervening event (see para [4]).
(2) There was a fundamental flaw in the judge’s approach because he had made the seemingly elementarymistake of confusing present capital with a right to financial benefits on retirement, only 25% of which maximum could be taken in capital terms, the other 75% being taken as an annuity stream. He had simply failed to compare like with like. The prospect of the husband, at 41 years of age, receiving either capital or income from the pension fund was deferred, if not distant, and there was a fundamental anxiety that there had been an injustice in this case (see paras [3], [6]).
