I have copied below the letter I have received from the solicitor of my ex husband. In answer to your question. As far as I am aware the fund is grown through rental income from the property which has been added to regularly since I divorced. I do not know if deposits have been made in his name. This has not been mentioned, so I guess not, but I cannot confirm this at present.
I have just noticed that he is referring to this as a matrimonial affair - yet surely the matrimonial side of it has been agreed. Is this not just a pension affair?
Our Client – Clive Warren Hawes
We have been instructed by Clive Hawes in relation to family matters and in particular pension issues.
We understand that following divorce proceedings issued in the Watford County Court under Case No. WD05D00208, your marriage was dissolved by Decree Absolute on 13th March 2006. At that time our client was represented by Messrs Paul Montgomery Solicitors, and you were represented by Messrs Levison Meltzer Pigott Solicitors of London. Financial proceedings took place in Court, which culminated in agreement being reached in relation to financial matters. This agreement was embodied in an Order made by District Judge Rhodes on 26th October 2005. The Order was to take effect following Decree Absolute.
We attach a copy of the Order. We understand issues have arisen in relation to pension provision.
The Pension Sharing Annexe refers to the fact that on the 26th October*****made a Pension Sharing Order whereby our client as Transferor would transfer to you, as Transferee, an interest in the Hawes Executive Pension Scheme said to be such a percentage of the cash equivalent transfer value of the pension arrangement as is equivalent to £200,000 on the valuation date. The Pension Sharing Order makes it clear that the Order was to take effect on 16th November 2005 or on pronouncement of Decree Absolute if later, and the Decree Absolute was pronounced on 13th March 2006. The Order further made it clear that such action should take place within 4 months from the date of Decree Absolute, that is on or before 13th July 2006, or, if later, 4 months from the date on which the Financial Order, Pension Sharing Order, and Decree Absolute were served upon the pension provider, the Trustees of the Hawes Executive Pension Scheme. We understand as at the date of the Order, the Prof Trustees , the Trustees of the
Pension Scheme, have confirmed this would equate to a 13.83% share of the scheme, although no formal implementation has taken place.
As the recipient of the pension share it would have been usual practice for your lawyers to deal with service and implementation. We understand from our client however that the Pension Sharing Order was not served upon the Trustees, and therefore the 4 month implementation period has yet to commence. We understand this is because you were happy for your share of the fund, of £200,000, to be retained within the Scheme and you therefore chose not to commence implementation. No doubt you will have received legal advice at the time regarding the need to implement the Pension Sharing Order, and the impact of the failure to implement. Indeed we understand in recent communications with our client, you have indicated that you chose not to implement the Pension Sharing Order, because you were content for your funds to remain within the Hawes Executive Pension Scheme, as your e-mail sent to our client 29th March 2014 confirms. We understand at that time the pension fund comprised commercial property and cash reserves, and informally the sum of £200,000 was allocated, in order that such funds could be preserved for you.
We have advised our client to formally deal with the implementation of the Pension Sharing Order now, and to instruct the Trustees of the Pension Scheme to deal with this urgently. We understand from liaising with the Trustees of the Pension Scheme, that they are happy to implement the Pension Sharing Order but do need guidance regarding the amount to transfer to you particularly given the overall change in fund value from 13th March 2006 to date. The Pension Sharing Order clearly states that you should be allocated “such percentage of the CETV of the pension arrangement as is equivalent to £200,000.” We understand our client has provided you with his calculation regarding the potential growth of that sum given the cash reserves which you both agree were informally allocated to you. Given however no formal implementation took place and therefore there has been neither an internal nor external pension share, we understand the Trustees are unable to deal with implementation until they receive an instruction from both you and our client of the amount to allocate. They are also deeply concerned that only now are steps being taken to implement the Pension Sharing Order, despite the Order being made many years ago.
We have advised our client that one option would be to return the matter to Court and ask the District Judge to consider afresh the position regarding the pension. We have advised our client that the Court will be extremely critical of both of you for failing to implement the Pension Sharing Order in 2006, and the costs of returning this matter to Court could be substantial. Whereas the Trustees of the Pension Scheme acknowledge they had some awareness of the Court Order at least as far back as September 2007, given formal implementation did not take place, it is understandable the Trustees are seeking guidance.
If this matter is decided by the Court it is likely the Court will require a valuation of the assets within the Pension Scheme for matrimonial purposes and there will be costs associated with this, which will be an obligation on the part of both of you. Whilst we understand there has been a recent valuation of property within the scheme, this has been carried out for internal purposes and our client has been informed by his Finance Director, David Thorpe, this cannot be utilised for matrimonial purposes and be released to the Prof Trustees. The process of returning the matter to Court will be lengthy and expensive and costs will be borne by both of you. We hope therefore that agreement can be reached regarding the amount to be implemented and therefore a joint instruction can be given to the Trustees of the Pension Scheme.
The attached schedule prepared by our client, based on interest received in relation to cash reserves at that time, calculates your growth in funds to arrive at a figure of £251,559.99, to be expressed as a percentage of the pension funds. Our client acknowledges however that you both share responsibility for the failure to implement the Pension Sharing Order, and that there was no formal internal pension sharing. Whilst informally cash reserves were allocated, the pension fund also comprises commercial property, and the overall fund has seen growth. The Trustees of the Pension Scheme, have suggested that a 13.83% share of the fund would equate to a figure of £351,000 as at 5th April 2013 which is contrary to the clear intention of the Court at that time to award you £200,000 expressed as a percentage. Furthermore, this figure is disputed as it includes
income received within the Pension Scheme post the Order being made including rental income and interest from cash reserves and deposits. These sums need to be excluded from any valuation figures as they are post matrimonial assets.
In order to avoid litigation, the costs of revaluing the scheme for matrimonial purposes, costs of preparing accounts, and returning this matter to Court, we are instructed to propose that a payment of £300,000 expressed as a percentage be assigned to you and that implementation in relation to the Pension Sharing Order take place. We would be grateful if you could confirm your agreement to this course of action.
We would stress this is not intended to be put forward for negotiation purposes but is a serious attempt to settle matters.
These issues are complex and we would urge you to seek your own independent legal advice. If you take this letter to your Lawyer you may ask him or her to respond on your behalf. We look forward to hearing from you as quickly as possible.