The Welfare Reform and Pensions (Northern Ireland) Order 1999

Article 18.

SCHEDULE 3 PENSION SHARING ORDERS

1.  The Matrimonial Causes Order is amended as follows.

2.  In Article 2 (interpretation), in paragraph (3), for “and” at the end of sub-paragraph (a) there shall be substituted—

“(aa) references to pension sharing orders shall be construed in accordance with Article 23A; and”.

3.  After Article 23 there is inserted—

“Pension sharing orders

23A.— (1) For the purposes of this Order, a pension sharing order is an order which—

(a) provides that one party's—

(i) shareable rights under a specified pension arrangement, or

(ii) shareable state scheme rights,

be subject to pension sharing for the benefit of the other party, and

(b) specifies the percentage value to be transferred.

(2) In paragraph (1)—

(a) the reference to shareable rights under a pension arrangement is to rights in relation to which pension sharing is available under Chapter I of Part V of the Welfare Reform and Pensions (Northern Ireland) Order 1999 or under Chapter I of Part IV of the Welfare Reform and Pensions Act 1999, and

(b) the reference to shareable state scheme rights is to rights in relation to which pension sharing is available under Chapter II of Part V of the Welfare Reform and Pensions (Northern Ireland) Order 1999, or under Chapter II of Part IV of the Welfare Reform and Pensions Act 1999, and

(c) “party” means a party to a marriage.”.

4.  In Article 26 (property adjustment orders in connection with divorce proceedings, etc.), in sub-paragraphs (c) and (d) of paragraph (1), there is added at the end “, other than one in the form of a pension arrangement (within the meaning of Article 27D)”.

5.  After Article 26 there is inserted—

“Pension sharing orders in connection with divorce proceedings, etc.

26A.— (1) On granting a decree of divorce or a decree of nullity of marriage or at any time thereafter (whether before or after the decree is made absolute), the court may, on an application made under this Article, make one or more pension sharing orders in relation to the marriage.

(2) A pension sharing order under this Article is not to take effect unless the decree on or after which it is made has been made absolute.

(3) A pension sharing order under this Article may not be made in relation to a pension arrangement which—

(a) is the subject of a pension sharing order in relation to the marriage, or

(b) has been the subject of pension sharing between the parties to the marriage.

(4) A pension sharing order under this Article may not be made in relation to shareable state scheme rights if—

(a) such rights are the subject of a pension sharing order in relation to the marriage, or

(b) such rights have been the subject of pension sharing between the parties to the marriage.

(5) A pension sharing order under this Article may not be made in relation to the rights of a person under a pension arrangement if there is in force a requirement imposed by virtue of Article 27B or 27C which relates to benefits or future benefits to which he is entitled under the pension arrangement.

Pension sharing orders: duty to stay

26B.— (1) No pension sharing order may be made so as to take effect before the end of such period after the making of the order as may be prescribed by regulations made by the Lord Chancellor.

(2) Regulations under this Article shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly.

Pension sharing orders: apportionment of charges 26C. If a pension sharing order relates to rights under a pension arrangement, the court may include in the order provision about the apportionment between the parties of any charge under Article 38 of the Welfare Reform and Pensions (Northern Ireland) Order 1999 (charges in respect of pension sharing costs), or under section 41 of the Welfare Reform and Pensions Act 1999.”.

6.  In Article 27 (matters to which the court is to have regard in deciding how to exercise its powers with respect to financial relief)—

(a) in paragraph (1), for “Article 25 or 26” there is substituted

• “Article 25, 26 or 26A”, and

  (b)

  in paragraph (2), for “or 26” there is substituted “, 26 or 26A”.

7.  In Article 27A(1) (court’s duty to consider desirability of exercising power to achieve clean break), for “or 26” there is substituted “, 26 or 26A”.

8.—(1) Article 33 (variation, discharge etc. of certain orders for financial relief) is amended as follows.

(2) In paragraph (2), at the end there is added—

“(f) a pension sharing order under Article 26A which is made at a time before the decree has been made absolute.”.

(3) After paragraph (4) there is inserted—

“(4A) In relation to an order which falls within sub-paragraph (f) of paragraph (2) (“the paragraph (2) order”)—

(a) the powers conferred by this Article may be exercised—

(i) only on an application made before the paragraph (2) order has or, but for sub-paragraph (b), would have taken effect; and

(ii) only if, at the time when the application is made, the decree has not been made absolute; and

(b) an application made in accordance with sub-paragraph (a) prevents the paragraph (2) order from taking effect before the application has been dealt with.

(4B) No variation of a pension sharing order shall be made so as to take effect before the decree is made absolute.

(4C) The variation of a pension sharing order prevents the order taking effect before the end of such period after the making of the variation as may be prescribed by regulations made by the Lord Chancellor.

(4D) Regulations under paragraph (4C) shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly.”.

(4) In paragraph (5) after “property adjustment order” there is inserted

• “or pension sharing order”.

9.  In Article 35A (consent orders), in paragraph (3), in the definition of

• “order for financial relief”, after “26” there is inserted “, 26A”.

10.  In Article 39 (avoidance of transactions intended to prevent or reduce financial relief), in paragraph (1), after “26,” there is inserted

• “26A,”.

11.  After Article 42 there is inserted—

“Appeals relating to pension sharing orders which have taken effect

42A.— (1) Paragraphs (2) and (3) apply where an appeal against a pension sharing order is begun on or after the day on which the order takes effect.

(2) If the pension sharing order relates to a person’s rights under a pension arrangement, the appeal court may not set aside or vary the order if the person responsible for the pension arrangement has acted to his detriment in reliance on the taking effect of the order.

(3) If the pension sharing order relates to a person’s shareable state scheme rights, the appeal court may not set aside or vary the order if the Department of Health and Social Services has acted to its detriment in reliance on the taking effect of the order.

(4) In determining for the purposes of paragraph (2) or (3) whether a person or the Department has acted to his or its detriment in reliance on the taking effect of the order, the appeal court may disregard any detriment which in its opinion is insignificant.

(5) Where paragraph (2) or (3) applies, the appeal court may make such further orders (including one or more pension sharing orders) as it thinks fit, for the purpose of putting the parties in the position it considers appropriate.

(6) Article 26B only applies to a pension sharing order under this Article if the decision of the appeal court can itself be the subject of an appeal.

(7) In paragraph (2), the reference to the person responsible for the pension arrangement is to be read in accordance with Article 27D(4).”.