On 14 December 2016 the Law Commission presented their report as to how the law in relation to the enforcement of financial orders made within family proceedings should be reformed. iFLG were involved in the consultation process and a copy of their response, authored by me and Michael Allum of iFLG, can be found here. I also sat on an advisory group. Although the report focuses on the enforcement of domestic orders made within family proceedings, it also covers the discreet issue on giving effect to an order made by a foreign court in relation to a pension in England and Wales.
As the Law Commission explain in their report, the power of the English court to make orders following a foreign divorce is within the Matrimonial and Family Proceedings Act 1984 and, in some circumstances, the EU Maintenance Regulation. In summary, the English court only has power to make such orders where one or both parties have a sufficient connection (usually habitual residence or domicile) with England and Wales. This gives rise to a problem for many international families where one has a pension in England but neither party has a sufficient connection to England. English pension providers invariably refuse to implement a pension sharing order unless it has been made by the English court.
As we suggested in our consultation response (and I have been pressing the Government for over 15 years), the Law Commission propose an amendment to the 1984 Act to add the existence of an English pension arrangement as a further ground of jurisdiction (connectedness). The report explains that there was unanimous support from consultees for the proposed amendments to be introduced (para 9.62), including from iFLG. The Law Commission considered limiting the jurisdiction to cases where a pension sharing order had already been made abroad, but felt that this would be unduly restrictive as it would prohibit an English pension being shared in cases where the foreign courts do not have the power to make pension sharing orders.
The Law Commission therefore concluded by recommending the introduction of a new ground of jurisdiction under section 15 of the 1984 Act, namely that one of the parties has an interest in a pension arrangement situated in England and Wales (para 9.66). This proposed reform would benefit a good number of international families who have pensions in England but no longer have a sufficiently close connection here to obtain an order for the pension to be shared.
As the Law Commission report itself records (footnote 26 on page 135), we are regularly instructed by international families in these type of cases. We act for many lawyers around the world and help clients to make pension sharing orders here after a foreign divorce. We also act as expert witnesses for family courts as needed on this issue. If you require any further information please contact me on firstname.lastname@example.org. I have been very grateful to Michael Allum for all his help on this (email@example.com).