Family Law (Divorce) Act 1996

Pension adjustment orders.

17

17. (1) In this section, save where the context otherwise requires—

the Act of 1990” means the Pensions Act, 1990;

active member” in relation to a scheme, means a member of the scheme who is in reckonable service;

actuarial value” means the equivalent cash value of a benefit (including, where appropriate, provision for any revaluation of such benefit) under a scheme calculated by reference to appropriate financial assumptions and making due allowance for the probability of survival to normal pensionable age and thereafter in accordance with normal life expectancy on the assumption that the member concerned of the scheme, at the effective date of calculation, is in a normal state of health having regard to his or her age;

approved arrangement”, in relation to the trustees of a scheme, means an arrangement whereby the trustees, on behalf of the person for whom the arrangement is made, effect policies or contracts of insurance that are approved of by the Revenue Commissioners with, and make the appropriate payments under the policies or contracts to, one or more undertakings;

contingent benefit” means a benefit payable under a scheme, other than a payment under subsection (7) to or for one or more of the following, that is to say, the widow or the widower and any dependants of the member spouse concerned and the personal representative of the member spouse, if the member spouse dies while in relevant employment and before attaining any normal pensionable age provided for under the rules of the scheme;

F16 [ defined contribution scheme has the same meaning as in the Pensions Act 1990 ; ]

designated benefit”, in relation to a pension adjustment order, means an amount determined by the trustees of the scheme concerned, in accordance with relevant guidelines, and by reference to the period and the percentage of the retirement benefit specified in the order concerned under subsection (2);

member spouse”, in relation to a scheme, means a spouse who is a member of the scheme;

normal pensionable age” means the earliest age at which a member of a scheme is entitled to receive benefits under the rules of the scheme on retirement from relevant employment, disregarding any such rules providing for early retirement on grounds of ill health or otherwise;

occupational pension scheme” has the meaning assigned to it by section 2 (1) of the Act of 1990;

reckonable service” means service in relevant employment during membership of any scheme;

relevant guidelines” means any relevant guidelines for the time being in force under paragraph ( c) or ( cc) of section 10 (1) of the Act of 1990;

relevant employment”, in relation to a scheme, means any employment (or any period treated as employment) or any period of self-employment to which a scheme applies;

retirement benefit”, in relation to a scheme, means all benefits (other than contingent benefits) payable under the scheme;

rules”, in relation to a scheme, means the provisions of the scheme, by whatever name called;

scheme” means a pension scheme;

transfer amount” shall be construed in accordance with subsection (4);

undertaking” has the meaning assigned to it by the Insurance Act, 1989.

(2) Subject to the provisions of this section, where a decree of divorce (“the decree”) has been granted, the court, if it so thinks fit, may, in relation to retirement benefit under a scheme of which one of the spouses concerned is a member, on application to it in that behalf at the time of the making of the order for the decree or at any time thereafter during the lifetime of the member spouse by either of the spouses or by a person on behalf of a dependent member of the family, make an order providing for the payment, in accordance with the provisions of this section, to either of the following, as the court may determine, that is to say—

( a) the other spouse and, in the case of the death of that spouse, his or her personal representative, and

( b) such person as may be specified in the order for the benefit of a person who is, and for so long only as he or she remains, a dependent member of the family, of a benefit consisting, either, as the court may determine, of the whole, or such part as the court considers appropriate, of that part of the retirement benefit that is payable (or which, but for the making of the order for the decree, would have been payable) under the scheme and has accrued at the time of the making of the order for the decree and, for the purpose of determining the benefit, the order shall specify—

(i) the period of reckonable service of the member spouse prior to the granting of the decree to be taken into account, and

(ii) the percentage of the retirement benefit accrued during that period to be paid to the person referred to in paragraph (a) or (b), as the case may be.

(3) Subject to the provisions of this section, where a decree of divorce (“the decree”) has been granted, the court, if it so thinks fit, may, in relation to a contingent benefit under a scheme of which one of the spouses concerned is a member, on application to it in that behalf not more than one year after the making of the order for the decree by either of the spouses or by a person on behalf of a dependent member of the family concerned, make an order providing for the payment, upon the death of the member spouse, to either of the following, or to both of them in such proportions as the court may determine, that is to say—

( a) the other spouse, and

( b) such person as may be specified in the order for the benefit of a dependent member of the family,

of, either, as the court may determine, the whole, or such part (expressed as a percentage) as the court considers appropriate, of that part of any contingent benefit that is payable (or which, but for the making of the order for the decree, would have been payable) under the scheme.

(4) Where the court makes an order under subsection (2) in favour of a spouse and payment of the designated benefit concerned has not commenced, the spouse in whose favour the order is made shall be entitled to the application in accordance with subsection (5) of an amount of money from the scheme concerned (in this section referred to as a “ transfer amount”) equal to the value of the designated benefit, such amount being determined by the trustees of the scheme in accordance with relevant guidelines.

(5) Subject to subsection (17), where the court makes an order under subsection (2) in favour of a spouse and payment of the designated benefit concerned has not commenced, the trustees of the scheme concerned shall, for the purpose of giving effect to the order—

( a) on application to them in that behalf at the time of the making of the order or at any time thereafter by the spouse in whose favour the order was made (“the spouse”), and

( b) on the furnishing to them by the spouse of such information as they may reasonably require,

apply in accordance with relevant guidelines the transfer amount calculated in accordance with those guidelines either—

(i) if the trustees and the spouse so agree, in providing a benefit for or in respect of the spouse under the scheme aforesaid that is of the same actuarial value as the transfer amount concerned, or

(ii) in making a payment either to—

(I) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or

(II) in the discharge of any payment falling to be made by the trustees under any such other approved arrangement,

as may be determined by the spouse.

(6) Subject to subsection (17), where the court makes an order under subsection (2) in relation to a defined contribution scheme and an application has not been brought under subsection (5), the trustees of the scheme may, for the purpose of giving effect to the order, if they so think fit, apply in accordance with relevant guidelines the transfer amount calculated in accordance with those guidelines, in making a payment to—

( a) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or

( b) in the discharge of any payment falling to be made by the trustees under such other approved arrangement,

as may be determined by the trustees.

(7) Subject to subsection (17), where—

( a) the court makes an order under subsection (2), and

( b) the member spouse concerned dies before payment of the designated benefit concerned has commenced,

the trustees shall, for the purpose of giving effect to the order, within 3 months of the death of the member spouse, provide for the payment to the person in whose favour the order was made of an amount that is equal to the transfer amount calculated in accordance with relevant guidelines.

(8) Subject to subsection (17), where—

( a) the court makes an order under subsection (2), and

( b) the member spouse concerned ceases to be a member of the scheme otherwise than on death,

the trustees may, for the purpose of giving effect to the order, if they so think fit, apply, in accordance with relevant guidelines, the transfer amount calculated in accordance with those guidelines either, as the trustees may determine—

(i) if the trustees and the person in whose favour the order is made (“the person”) so agree, in providing a benefit for or in respect of the person under the scheme aforesaid that is of the same actuarial value as the transfer amount concerned, or

(ii) in making a payment, either to—

(I) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or

(II) in the discharge of any payment falling to be made under such other approved arrangement,

as may be determined by the trustees.

(9) Subject to subsection (17), where—

( a) the court makes an order under subsection (2) in favour of a spouse (“the spouse”),

( b) the spouse dies before the payment of the designated benefit has commenced,

the trustees shall, within 3 months of the death of the spouse, provide for the payment to the personal representative of the spouse of an amount equal to the transfer amount calculated in accordance with relevant guidelines.

(10) Subject to subsection (17), where—

( a) the court makes an order under subsection (2) in favour of a spouse (“the spouse”), and

( b) the spouse dies after payment of the designated benefit has commenced,

the trustees shall, within 3 months of the death of the spouse, provide for the payment to the personal representative of the spouse of an amount equal to the actuarial value, calculated in accordance with relevant guidelines, of the part of the designated benefit which, but for the death of the spouse, would have been payable to the spouse during the lifetime of the member spouse.

(11) Where—

( a) the court makes an order under subsection (2) for the benefit of a dependent member of the family (“the person”), and

( b) the person dies before payment of the designated benefit has commenced,

the order shall cease to have effect in so far as it relates to that person.

(12) Where—

( a) the court makes an order under subsection (2) or (3) in relation to an occupational pension scheme, and

( b) the trustees of the scheme concerned have not applied the transfer amount concerned in accordance with subsection (5), (6), (7), (8) or (9), and

( c) after the making of the order, the member spouse ceases to be an active member of the scheme,

the trustees shall, within 12 months of the cessation, notify the registrar or clerk of the court concerned and the other spouse of the cessation.

(13) Where the trustees of a scheme apply a transfer amount under subsection (6) or (8), they shall notify the spouse (not being the spouse who is the member spouse) or other person concerned and the registrar or clerk of the court concerned of the application and shall give to that spouse or other person concerned particulars of the scheme or undertaking concerned and of the transfer amount.

(14) Where the court makes an order under subsection (2) or (3) for the payment of a designated benefit or a contingent benefit, as the case may be, the benefit shall be payable or the transfer amount concerned applied out of the resources of the scheme concerned and, unless otherwise provided for in the order or relevant guidelines, shall be payable in accordance with the rules of the scheme or, as the case may be, applied in accordance with relevant guidelines.

(15) Where the court makes an order under subsection (2), the amount of the retirement benefit payable, in accordance with the rules of the scheme concerned to, or to or in respect of, the member spouse shall be reduced by the amount of the designated benefit payable pursuant to the order.

(16) ( a) Where the court makes an order under subsection (3), the amount of the contingent benefit payable, in accordance with the rules of the scheme concerned in respect of the member spouse shall be reduced by an amount equal to the contingent benefit payable pursuant to the order.

( b) Where the court makes an order under subsection (2) and the member spouse concerned dies before payment of the designated benefit concerned has commenced, the amount of the contingent benefit payable in respect of the member spouse in accordance with the rules of the scheme concerned shall be reduced by the amount of the payment made under subsection (7).

(17) Where, pursuant to an order under subsection (2), the trustees of a scheme make a payment or apply a transfer amount under subsection (5), (6), (7), (8), (9) or (10), they shall be discharged from any obligation to make any further payment or apply any transfer amount under any other of those subsections in respect of the benefit payable pursuant to the order.

(18) A person who makes an application under subsection (2) or (3) or an application for an order under section 22 (2) in relation to an order under subsection (2) shall give notice thereof to the trustees of the scheme concerned and, in deciding whether to make the order concerned and in determining the provisions of the order, the court shall have regard to any representations made by any person to whom notice of the application has been given under this section or section 40 .

(19) An order under subsection (3) shall cease to have effect on the death or remarriage F17 [ or registration in a civil partnership ] of the person in whose favour it was made in so far as it relates to that person.

(20) The court may, in a pension adjustment order or by order made under this subsection after the making of a pension adjustment order, give to the trustees of the scheme concerned such directions as it considers appropriate for the purposes of the pension adjustment order including directions compliance with which occasions non-compliance with the rules of the scheme concerned or the Act of 1990; and a trustee of a scheme shall not be liable in any court or other tribunal for any loss or damage caused by his or her non-compliance with the rules of the scheme or with the Act of 1990 if the non-compliance was occasioned by his or her compliance with a direction of the court under this subsection.

(21) The registrar or clerk of the court concerned shall cause a copy of a pension adjustment order to be served on the trustees of the scheme concerned.

(22) ( a) Any costs incurred by the trustees of a scheme under subsection (18) or in complying with a pension adjustment order or a direction under subsection (20) or (25) shall be borne, as the court may determine, by the member spouse or by the other person concerned or by both of them in such proportion as the court may determine and, in the absence of such determination, those costs shall be borne by them equally.

( b) Where a person fails to pay an amount in accordance with paragraph (a) to the trustees of the scheme concerned, the court may, on application to it in that behalf by the trustees, order that the amount be deducted from the amount of any benefit payable to the person under the scheme or pursuant to an order under subsection (2) or (3) and be paid to the trustees.

(23) ( a) The court shall not make a pension adjustment order in favour of a spouse who has remarried F17 [ or registered in a civil partnership ].

( b) The court may make a pension adjustment order in addition to or in substitution in whole or in part for an order or orders under section 13, 14, 15 or 16 and, in deciding whether or not to make a pension adjustment order, the court shall have regard to the question whether proper provision, having regard to the circumstances, exists or can be made for the spouse concerned or the dependent member of the family concerned by an order or orders under any of those sections.

(24) Section 54 of the Act of 1990 and any regulations under that section shall apply with any necessary modifications to a scheme if proceedings for the grant of a decree of divorce to which a member spouse is a party have been instituted and shall continue to apply notwithstanding the grant of a decree of divorce in the proceedings.

(25) For the purposes of this Act, the court may, of its own motion, and shall, if so requested by either of the spouses concerned or any other person concerned, direct the trustees of the scheme concerned to provide the spouses or that other person and the court, within a specified period of time—

( a) with a calculation of the value and the amount, determined in accordance with relevant guidelines, of the retirement benefit, or contingent benefit, concerned that is payable (or which, but for the making of the order for the decree of divorce concerned, would have been payable) under the scheme and has accrued at the time of the making of that order, and

( b) with a calculation of the amount of the contingent benefit concerned that is payable (or which, but for the making of the order for the decree of divorce concerned, would have been payable) under the scheme.

(26) An order under this section may restrict to a specified extent or exclude the application of section 22 in relation to the order.

Annotations:

Amendments:

F16

Substituted (14.04.2008) by Social Welfare and Pensions Act 2008 (2/2008), s. 31, S.I. No. 84 of 2008.

F17

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 154, S.I. No. 648 of 2010.

Editorial Notes:

E14

Information to be furnished in relation to pension adjustment orders prescribed (27.04.2007) by Trust Racs (Disclosure of Information) Regulations 2007 (S.I. No. 182 of 2007), reg. 14, in effect as per reg. 1(2).

E15

Information to be furnished in relation to pension adjustment orders prescribed (1.01.2007) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2006 (S.I. No. 301 of 2006), reg. 17, in effect as per reg. 1(2)(c), as amended (12.06.2012) by Occupational Pension Schemes (Disclosure of Information) (Amendment) (No. 3) Regulations 2012 (S.I. No. 203 of 2012), reg. 3(h).

E16

Pensions Board allocated function to issue guidelines or guidance notes generally on the operation of Pensions Act 1990 (25/1990) and on the provisions of this Act relating to pension schemes (within the meaning of s. 2) by Pensions Act 1990 (25/1990), s. 10(1)(cc), as substituted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 47(c), commenced as per s. 1(2), and amended (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 148, S.I. No. 648 of 2010.

E17

Minister granted power to make regulations specifying guidelines for purposes of section by Pensions Act 1990 (25/1990), s. 5(4), as amended (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 47(a) and (b), commenced as per s. 1(2), and amended (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 148, S.I. No. 648 of 2010. Power to make regulations under Pensions Act 1990 (25/1990), s. 5, as amended, was exercised (27.02.1997) by Pension Schemes (Family Law) Regulations 1997 (S.I. No. 107 of 1997), in effect as per reg. 1(2), and (18.07.2012) by Pension Schemes (Family Law) (Amendment) Regulations 2012 (S.I. No. 254 of 2012).

E18

Previous affecting provision: information to be furnished in relation to pension adjustment orders prescribed (1.01.2007) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2005 (S.I. No. 633 of 2005), reg. 17, commenced as per reg. 1(2)(d); revoked (1.06.2006) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2006 (S.I. No. 301 of 2006), reg. 2(2), in effect as per reg. 1(2)(b).

E19

Previous affecting provision: information to be furnished in relation to pension adjustment orders prescribed (1.10.1998) by Occupational Pension Schemes (Disclosure of Information) (No. 2) Regulations 1998 (S.I. No. 349 of 1998), reg. 15, in effect as per reg. 1(2)(a); revoked (1.01.2007) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2006 (S.I. No. 301 of 2006), reg. 2(1)(c), in effect as per reg. 2(1)(c).