A digest of the posts in the ‘Pensions: Pension offsetting/Maskell v Maskell, and beyond?’ Forum. Pertinent Case Law and Legal Articles; Pension Offsetting and the 25% ‘Rule’.
MAIN POINTS DISCUSSED AS AT 28TH OCTOBER 2008 Pertinent Case Law & Legal Analsis. ___________________________________ Posted by Peter@BDM - 2008/03/10 19:05 I have come across a very helpful analysis of the various cases that are often quoted when considering pensions in divorce. I think you will find that it clears up many of the misunderstandings, particularly the relevance of the 25% figure in the case of Maskell vs Maskell. http://www.tanfieldchambers.co.uk/seminars/PENSIONS_IN_ANCILLARY_RELIEF.pdf ============================================================================ Posted by val1 - 2008/03/10 23:01 The Maskell case went to appeal and as far as I am aware no outcome other than the pair sent to mediation was offered. I have looked into pensions v assets as this figures significantly in my settlement. I too had a solicitor for 4 years who often quoted me the 25% offset (rule?) but having worked in a financial capacity (not an IFA)for the last 31 years was not convinced by her as she could offer me no other explanation other than that`s how it was.Obviously we have now parted ways. There was an interesting comment by a judge in a more recent case Vaughan v Vaughan 2007 that if I remember correctly said that a pension fund was "in the bag" and was added to the outcome of the financial settlement at full value. If anyone can find this case on the internet please read and although there were a number of issues in the case please leave your comments on my interpretation of the pension being included in the final settlement. ============================================================================ Posted by Peter@BDM - 2008/03/11 08:56 There is a report of a case in the High Court of Justice in Northern Ireland (Family Division) at http://www.courtsni.gov.uk/NR/rdonlyres/E331BE7D-9636-4BF5-A60C-90F0CA6B4337/0/j_j_Master53Final.htm. For Vaughan vs Vaughan go to the excellent Family Law Week (where else) at http://www.familylawweek.co.uk/library.asp?i=3258. ============================================================================ Pension Offsetting and the 25% ‘Rule’. ______________________________________ Posted by PMW - 2008/03/09 09:27 It seems to me that: 1 CETV (not linked to final salary) v hard asset value and 2 25% CETV per Maskell case v hard asset value are potentially two extremes. There must be a value attributable to the non lump sum portion of the pension i.e. the bit that produces the pension income. Is there a case since Maskell that supports this please? Since my husband (age 45)and his solicitor are arguing 25% CETV and I (age 44) am told it is the DJ's stance in my area, any attempted negotiation on my part will fall on deaf ears unless I can come up with something better. My solicitor is accepting of the local DJ's stance. FDR is in 3 weeks and my requests re pension valuation has fallen on deaf ears. There are other major complications in our case too including Children Act proceedings (my husband does have contact with the children) so I am loath to change solicitors at this stage. ============================================================================ Posted by maggie - 2008/03/09 11:34 Personally if I were offered only 25% of the pension fund CETV I would reject offsetting and go all out for pension sharing of at least 50% at FDR - then make a massive concession to his ego/preserve the value of the pension potentially "lost by splitting" by giving up your rightful 50% of the CETV for equivalent value in the house /shares etc? but it all depends on your circumstances - whether by giving up your right to 50% of the marital pension you could own your family home outright and whether that's more psychologically valuable than future pension income and a tax free lump sum at age 65. I'm sick of these glass ceilings imposed by local District Judges and accepted by solicitors : "My solicitor is accepting of the local DJ's stance" The solicitor and DJ are supposed to make sure all the circumstances of the case are considered, not impose some personal preference. There are no rules or precedents about how much the offset value will be - the Maskell case only demonstrates how open and susceptible to argument it all is- as long as your local sheriff/DJ doesn't remove your rights under the law. ============================================================================ Posted by Elizabeth - 2008/03/10 00:59 Totally agree with Maggie - in every way - I can't mention names of solcitors but I bet they are in Tunbridge Wells, Mount Ephraim! I wouldn't change your solicitor - the bloomin Maskell case seems to loom large and I wish I could have found a counter one at the time of my Final Hearing when that came into play! Within the Form E your ex will have to produce a CETV of his pension - whatever type it may be. I wish I knew of a case where offsetting had been done and I would have asked that this be used in my case but I just thought it would be offset pound for pound - that is not the case and as far as I can see will not be so that's a big consideration. Rule of thumb is the Matrimonial Causes Act 1973 - move away from this and you will be way off what any DJ will be looking at! Children's interests/needs will come first. Pension sharing is not a bad thing - However if you are in a similar situ to me I hoped that the value of my husband's CETV pension would mean I would pay him less of a lump sum - not so - we had a child each. ============================================================================ Posted by rab.westwood - 2008/10/28 13:36 Just wondered exactly what is the position on this, personally I want to split everything 50/50 and have no issues whatsoever with pension sharing. However I do have issues with offsetting against what would basically be the only financial assets available directly i.e. equity on the house. 1. can either of us be forced to offset? 2. is pension sharing seen as a fair way of resolving the issues? ============================================================================ Posted by Peter@BDM - 2008/10/28 14:03 If you cannot reach an agreed solution, the court will make a decision that is deemed fair but they will take each of your concerns and requirements into account. Pension sharing is seen to be generally fair. It is relatively new legislation (only becoming law in 2000) and, like offsetting is has the advantage of achieving a desirable clean-break. ============================================================================ Posted by Kalamari - 2008/10/28 21:07 Thanks for all these references, they are very informative. Would anyone be able to comment on one of the conclusions from John Buck's paper;- 7.3. In a long-marriage case it seems tolerably clear that, provided they are substantial assets, the court’s approach is likely, at first instance, to add the value of pensions to the extent their value has accrued during cohabitation and marriage and divide by two. I have been working on the basis that for long marriages ALL the value of pension would be taken into account - there is a ~ 10% difference for my case, where my pension represents ~ 60% of the assets. So I guess the difference is well within all the other uncertainities!!