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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 34278
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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Can a County Court Pension Sharing Order be varied without

Resolved Question:

Can a County Court Pension Sharing Order be varied without the sanction of the Court?
Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Have both the parties to the Order agreed to the change?
Clare
Customer: replied 2 years ago.

Clare, thank you for yours, the history is complicated. The County Court Pension Sharing order was agreed and made at the time of my divorce in December 2004 being a percentage division of my pension income. The monetary amounts then to be paid were to be determined by actuaries appointed by the pension trustees; this process took over five months during which time with the agreement of our solicitors I paid my former wife (Joan) half of my net pension income. The actuaries determined the annual figure due to each party in conformance with the Pension sharing order but the trustees then varied the amounts payable to each party by backdating the amounts due to the date of the Court Order, ignoring the fact that I had already paid a proportion of my income over to Joan. Apart from this issue I questioned their authority to vary a Court Order in this way, as a former magistrate it was my belief that such an order could not be varied without a Court sanction. The solution we agreed was that I paid into the pension fund a lump sum

to restore by annual pension and I would seek to recover the amount I had paid to Joan. Clare, the answer to your direct question is that Joan had no need to agree a change as she was not adversely affected by what had happened.

However the saga continued, my pension was with a private company scheme and which went into administration around the same time, May 2004, but I was advised my pension was secure, having been fully paid up and I then received my full pension for the following nine years until the trustees passed the administration over to the Government's Pension Protection Fund to then be administered by the Financial Assistance Scheme (FAS). To cut a long story short this resulted in my pension again being reduced the FAS claiming that under their rules I had been overpaid since May 2004 and this claimed overpayment was to be recovered by reducing my pension for the rest of my life so again ignoring the County Court Order. There is therefore a matter of principle and law still to be determined, can Judicial orders be varied without a Court sanction? The question I have posed to both pension trustees and Government agencies without being able to get a direct answer to what to me seems to be a straight forward question, I do not want to let the matter rest, your opinion would be appreciated, thank you, ***** *****

Expert:  Clare replied 2 years ago.
Hi
When was the Pension pot actually split and an amount transferred into your wife's name?
Clare
Customer: replied 2 years ago.

I cannot answer this question positively; I assume at sometime during the lengthy time period prior to the transfer of the company pension scheme administration being handed over to the Pension Protection Fund when I was then formally advised that my asset share in the scheme was £685,212 which had then been in effect confiscated. I have appealed to the Pensions Ombudsman on a number of counts, the reduction in my pension, the fact the reduction was backdated for over eight years (Limitation Act) etc this took nine months before my being advised that the actual pension calculation under the FAS rules was correct, but the ombudsman was unable to comment on the other issues I had raised as they fell outside his brief, It was however suggested that I should consider taking my appeal to the Parliamentary Ombudsman which I am considering at present. Varying the terms of the original court order is central to my case which all the parties since concerned seem have avoided answering which has raises my suspicions that this is an Achilles heel in their defending what has occurred, hence my question to you. My asset share in the fund, if it had been available, would have bought me an annuity which would have provided me at my age of 81 with a pension almost three times larger than is currently being paid for the rest of my life. You will understand why I feel aggrieved!

Expert:  Clare replied 2 years ago.
Hi
For clarity WAS the Pension pot actually split?
Clare
Customer: replied 2 years ago.

Clare, yes it was at some stage, my share of the pension pot was as I have stated, my former wife will have had a similar "pot". Joan also still receives a pension via the FAS but is not so aware of what has happened. I have not discussed the matter with her as I did not want to risk confusing issues further until at least I was more sure of my ground and information. I believe that our combined pots could have represented as much as 30% of the assets that were passed by the scheme's trustees over to the Pension Protection Fund; another issue!

Expert:  Clare replied 2 years ago.
Hi
So in terms of the actual court order the Order was carried out and the Pot was split.
There was a dispute because they backdated the split and did not take account of the money that you had already paid - is that correct?
If so did you in fact try and recover the money from your ex?
I am not sure what your second point is - could you clarify this please
Claee
Customer: replied 2 years ago.

Yes, the implementation of the Court Order started by determing the division of the "pot" between us. The actual split was 51% to my wife and 49% to me Joan being slightly older and a cigarette smoker.The annual pensions then due were calculated and immediately actioned by the trustees without the knowledge or consent of either party or their representatives, some six months having elapsed from the date of the Order until the first payments being made. The amount due to me under the Order had been permanently reduced on the grounds that I had been overpaid during the six months. I was away on business abroad at this time on my return when I discovered what had happened I contacted the Trustees to protest they had acted without authority and had in effect varied the terms of the Court Order and I questioned their right to do so.

A compromise was reached this being that I would be paid the amount established by the Court Order, to achieve this I would pay £13k into the pension fund so their actions could be reversed and I would recover the monies I had been paying over to Joan. The emotional strain upon Joan at this time was worrying me so I later decided I would not press her for the recovery of the money I had paid, so the overall the financial cost to me was considerable. I had been determined that the terms of the Court Order should be adhered to, which I believed to be the law, hence the sprcific question I have posed to you.

For the present it is perhaps not wise to consider other issues which arose much later when the pension scheme trustees passed to administration over to the Pension Protection Fund. I will now look forward to your reponse, thank you.

Expert:  Clare replied 2 years ago.
Hi
I am sorry - the Trustees did in fact implement the Order - what exactly did they do wrong?
Clare
Customer: replied 2 years ago.

The Court order was for the total pension "pot" to be divided 51/49, individual pensions to be determined by independent actuaries to then be paid by the trustees to each individual. This did not happen as the actuaries' figures were then arbitarily and permanently changed without reference either to the parties concerned or to the Court.

Such a reduction happened again when the scheme was passed by the trustees to the Pension protection Fund, hence my original question can such changes to made by whoever whenever without the sanction of the Court?

I have now received a separate message from Just Answer stating that my question cannot be answered, but without any reason as to why, which to say the least is very disappointing can you comment please?

Expert:  Clare replied 2 years ago.
Hi
Was the pot divided in those percentages?
Clare
Customer: replied 2 years ago.

I would prefer to do so having received your reply to my last message, there surely must be a reason or at least a guarded opinion?

Expert:  Clare replied 2 years ago.
Hi
I am sorry?
If the pension Trustees implemented the Order and divided the Pot in those percentages then they acted correctly and has they were required to do.
Any payments woudl then be paid in accordance with the terms of the pension scheme
I appreciate that in the time it took for the split to happen you had in fact already made payments to your ex which led to you being out of pocket - but the was not the fault of the Pension Scheme who merely acted on the order.
I do feel that this does not cover your query in full - but it would be helpful if you could explain what more it is that you need to know
Clare
Customer: replied 2 years ago.

Thank you for that I understand where you are coming from you can perhaps also understand my frustrations, my fully paid up pension has been eroded three times over the nine years and the £680k+ pot confiscated, I still believe I have a case for this and a number of other reasons to claim that the trustees maladministered to wind up of the pension scheme. Even the pensions ombudsman suggested that I should consider now appealing to the Parliamentary Ombudsman all this is a wearing experience but there are also matters of principle involved at least the process is keeping my brain cells active! Thank you anyway.......

Expert:  Clare replied 2 years ago.
Hi
From what you have said there may well have been maladministration - but not when it comes to this specific point - they did exactly what the court ordered as they should
Clare
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