Pensions and Needs-Based Divorce Cases

FLiP Director James Pirrie discusses the approach to take with regards to pensions in needs based divorce cases, taking inspiration from Paul Cobley of Oak Barn Financial Planning. 

I had one of those “yes, why HAVE we been doing things this way?” moments recently. This one came about listening to the inspired and inspirational Paul Cobley. I suspect that we should all have the opportunity to while away our days listening to Paul, known to most in family law as one of our leading pension experts.

His recommendation was this: “In needs cases, stop giving alternatives when you write to ask for your pension reports. Make up your mind and ask for the one set of numbers you want. Don’t become the architect of their final battleground ”.  Paul probably put it better than this, but I was collecting my jaw off my keyboard at the time.

As Paul reminds us any other approach simply:

• increases costs;
• puts off the evil day when you will have the argument.

Worse than this:

• you will then have the argument when it is fueled by the odd percentage point (or fraction of a percentage point) difference that the report now shows exists between the approaches;
• you will force your counsel to fill up lots of hearing-note space debating the point, when that space and effort is needed elsewhere;
• a compromise may be settled upon that may not even be in the report;
• you are left on each side to scurry around solving different problems.

Surely better to fix what is met by the pension and then both address the same problem (of how to meet the other needs on each side of the case, from the other resources in the pot).

Well how right that is. If there are arguments of principle we need to have them up front and if we can’t solve them we need to ask our judges to determine the point too and hope that they will adopt “Cobley’s Law” as they do so, forcing the legal teams to at least work on the same problem together as the case progresses.

Paul also suggests that we may have got into a strange “on an equality of capital and on an equality of income” basis for our reports – without being able to explain the difference between the two or which party is likely to benefit from which option.  Those advocates of the equality of capital basis who think this avoids awarding too much to the wife, probably don’t realise that in certain situations it favours the wife.

Strip all this away and ultimately aren’t we only ever working out in needs cases:

How to give each of a couple:

• The same income;
• From a specific point in time (e.g. when H is 60 or when H and W are each 60), being their realistic and likely retirement dates;
• And don’t ignore or forget state pensions;
• And then having to hunker down to work out the rest of the distribution of the resources so as to enable the other needs to be met around this clear point.

Simple!

The punchline instructions from Paul’s own draft instruction letter, for those who want them are this:

“You are therefore instructed as a single joint expert to provide a report on the percentage Pension Sharing Order(s) against [pensioner’s] pension schemes [list] to give [pensioner] and [spouse] equal pensions, on the same benefit basis, in ‘real’ terms, after the Sharing Order has been implemented, when [pensioner/ spouse] is aged [X].”

Thank you Paul.  We are even more greatly in your debt.