Pensions - Post-earmarking

In the Legal Executive Journal for December, Helen Conway, trainee barrister, considered orders earmarking pensions introduced by s25(B)(1) of the Matrimonial Causes Act 1973, which had given rise to ‘pension phobia’ and an understandable lack of confidence in some practitioners which made pensions even more problematic and unpleasant to deal with. Though s25(B) and 25(C) provide that it is no longer possible to ignore pension funds as being too far into the future to be relevant, the sections do not create any entitlement in the sense of an accrued right to a share in a pension and it is unlikely that pension earmarking will be appropriate in cases involving young or middle-aged couples who are some time away from retirement. Alternatives to pension earmarking considered by the author are judicial separation (which may avoid any pension right being lost at all); off-setting (whereby one spouse is given more of the other capital assets to comprise a fund for their retirement while the whole of the pension is retained by the other, or a two-staged lump sum order) and periodical payments for a working wife, possibly for a term only, to enable her to top up her pension fund to ensure she remains financially independent in retirement. The author warns against wasting costs on pensions calculations which are not needed to decide how needs are to be met, although the death benefits in a pension should always be considered.