Southern (Née Brownbill) v Southern and Kingswell

CourtRoyal Court
JudgeBailhache, Bailiff and Jurats Myles and Le Breton:
Judgment Date22 April 1999
Date22 April 1999
Bailhache, Bailiff and Jurats Myles and Le Breton:

Mrs. M.E. Whittaker for the petitioner;

R.G.S. Fielding for the respondent.

Cases cited:

(1) Bickley v. Hawkins, Royal Ct., December 19th, 1995, unreported, considered.

(2) Brooks v. Brooks, [1996] A.C. 375; [1995] 3 All E.R. 257; [1995] 2 FLR 13; [1995] 3 F.C.R. 214; [1995] Fam. Law 545; (1995), 145 New L.J. 995; 139 Sol. Jo. (L.B.) 845, dicta of Lord Nicholls of Birkenhead applied.

(3) Downes v. Romeril, Royal Ct., April 10th, 1996, unreported, considered.

(4) T v. T, [1998] 1 FLR 1072; [1998] 2 F.C.R. 364; [1998] Fam. Law 398, dictum of Singer, J. considered.

(5) Urquhart v. Wallace, 1974 J.J. 119, dictum of Ereaut, Bailiff applied.

Additional cases cited by counsel:

Elwell v. Knight, 1977 J.J. 177.

Griffith v. Dawson, [1993] 2 FLR 315.

Howarth v. McBride, 1984 J.J. 1.

K v. K, [1997] 1 FLR 35.

Legislation construed:

Matrimonial Causes (Jersey) Law 1949, art. 29(1): The relevant terms of this paragraph are set out at page 97, lines 25-37.

art. 30(6): The relevant terms of this paragraph are set out at page 98, line 20.

Matrimonial Causes Act 1973 (c.18), s.25B, as inserted by Pensions Act 1995 (c.26), s.166: The relevant terms of this section are set out at page 97, lines 17-19.

Family Law—financial provision—pensions—court to consider parties' pension entitlements in all cases—if considering lump sum payment, pension entitlement may be treated as "property" under Matrimonial Causes (Jersey) Law 1949, art. 30

Family Law—financial provision—pensions—compensatory approach—value of pensions entitlement is cash equivalent transfer value of prospective benefits in pension scheme at date of divorce—to consider actuarial evidence on relationship of wage and price inflation between divorce and normal retirement

The Judicial Greffier, acting under r.50(2) of the Matrimonial Causes (General) (Jersey) Rules 1979, referred to the court certain issues concerning pension rights of a husband and wife upon divorce.

The parties had been married for 15 years but had pursued different career paths which had had an effect upon their respective rights under the public service pension scheme. The husband had enjoyed considerable success and would be entitled on retirement to a pension of more than £21,000 per annum, but the wife had given up full-time work to look after the home and their two children and would qualify for an annual pension of only £5,000. The Judicial Greffier referred to the court the issues of whether, and to what extent, the interests of both parties in the public service pension scheme should be taken into consideration on divorce, and, if necessary, how those interests should be valued.

The wife submitted that (a) under art. 29(1) of the Matrimonial Causes (Jersey) Law 1949, as amended, the pensions should be valued and included in the capital assets to be divided between the parties; and (b) her contributions to the marriage in looking after the house and raising the children should be taken into account when considering their pension rights, and yield a lump sum payment to her.

The husband submitted in reply that (a) the value of the pensions should be excluded from consideration because it was not mandatory to consider them, they represented no more than contingent income and, if maintenance were to continue to be paid by him to the wife after retirement, there would be an unfair double benefit to her; and (b) the wife's contributions in looking after the house and raising the children should not be taken into account when considering pension rights because circumstances could change, e.g. the wife could re-marry before his retirement.

Held, ruling on the issues referred:

(1) A pension entitlement was an asset to which the court should have regard in all cases in which financial provision was being considered. The language of the Matrimonial Causes (Jersey) Law 1949, as amended, was broad enough to allow the court to consider a prospective pension entitlement as "property" in deciding whether or not to order a lump sum payment. Further, since the wife had indirectly contributed, by looking after the house and children, to the creation of the husband's pension entitlement, and since "clean break" settlements were to be encouraged, the wife should derive some benefit from it at the time of divorce (page 98, lines 21-24; page 99, line 37 - page 100, line 4).

(2) That benefit was to be calculated using a compensatory approach—leaving the husband's pension rights undisturbed but taking their value into account so that the wife received an appropriately enlarged share of the parties' other assets. The pension rights were to be valued as the cash equivalent transfer value of the member's benefits from the pension scheme calculated at the date of divorce, taking into account actuarial evidence on the likely difference between wage and price inflation between that date and the normal retirement date, or any other material factors. Since appropriate valuations had been arrived at for both parties' interests in the scheme, the matter would be remitted to the Greffier Substitute for adjudication (page 100, line 45 - page 101, line 3; page 101, line 39 - page 102, line 2; page 102, line 21 - page 103, line 3).

BAILHACHE, BAILIFF: This is a reference by the Judicial Greffier pursuant to r.50(2) of the Matrimonial Causes (General) (Jersey) Rules, 1979 referring to the court the issues of how the interests of both parties in contributory pension schemes should be...

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