Pensions on divorce for litigants in person

Rhys Taylor.a5x4


This is a guest post by Rhys Taylor. Rhys is a barrister and arbitrator at 30 Park Place, Cardiff and 36 Bedford Row, London. Rhys specialises in financial remedy and family property disputes. He lectures for the Judicial College on the subject of pensions on divorce. The views expressed here are entirely personal. Rhys tweets as @rhystaylor32.


Financial proceedings following divorce can often be complicated and, if you can afford it, I strongly commend the instruction of a solicitor who can assist you through the maze. This short note is written for those who would like to instruct a solicitor but cannot afford to do so and find themselves bewildered by the issue of pensions and how that fits into a divorce settlement.

The big picture

You are at an important crossroad in your life. You are about to make some very big decisions which may have lasting consequences. My headline is : take the issue of pension provision seriously. So often, retirement can seem a distant prospect and more immediate needs, particularly for housing, dominate. Time has a nasty way of creeping up, however, and retirement may be nearer than you think. I am not qualified to give financial advice, for which you must seek out an Independent Financial Adviser or a Chartered Financial Planner. I do know that many of them would urge you not to lightly trade away your possible rights to pension capital in exchange for more capital now, or worse still, for a quiet life.

Clearly you will need a house to live in, but in some circumstances it is possible (and your guardian angel might counsel you to do so) to bite the bullet and downsize now, so that you can have a basket of apples and pears i.e. some liquid capital with which you can buy housing (perhaps at a lower standard than your former matrimonial home) and some pension capital which will provide for your old age. I know that this will not always possible and immediate needs may simply demand a trade between apples and pears in order to keep a roof over your head, but do not do this too lightly and without having thought about your future and how you will afford to live in your old age.

The state pension

The state pension changed in April 2016. The changes are complex, but it remains miserly and the so called “Single Tier” pension is anything but that and is subject to all kinds of complicated adjustments, dependent upon how many years you have contributed.

Worse still, the ability of some spouses to substitute their partner’s National Insurance contributions has been removed. You can find a more detailed potted summary of the complex state pension changes and how they impact upon divorce at Appendix B of a paper I have written for lawyers, which is to be found on the Jordans website.

Do not compromise on disclosure

You must insist on proper disclosure of all pensions. Some people are reluctant to disclose. If they are difficult, you have a right to make an application to court for financial remedy proceedings and the court will require proper pension disclosure in a document called Form E.

Prior to making an application to court you will usually have to attend upon a mediator who is qualified to conduct a Mediation Information and Assessment Meeting (or “MIAM” for short.) In many instances mediation is a very wise road to go down, but even in mediation you must insist upon proper disclosure first and if you are at all dissatisfied the court will insist on that disclosure on your behalf.

How do I value a pension?

Pension disclosure normally comes in the form of a Cash Equivalent (also known as a Cash Equivalent Transfer Value, CETV, CEV or just CE). This is a figure which a pension scheme actuary will place on the pension as his or her assessment of what the scheme would need to be paid in order to agree to transfer the pension elsewhere. But, be warned, the Cash Equivalent does not always tell a true story.

This is particularly the case for a final salary or career average salary pensions which have a guaranteed benefit at the end of the day. The Cash Equivalent will be an illusory figure if the benefits are guaranteed and no transfer to another pension scheme actually take places.  The value will be in the pension itself, and the benefits it will bestow in due course, not in the potentially misleading Cash Equivalent figure. An expert will often be required to provide an accurate assessment of the true value of the pension.

It is well known that different scheme actuaries take difficult factors into account in arriving at Cash Equivalent and in big schemes the costs of investing and administering the scheme are not always factored into the figure. By contrast, a defined contribution or personal pension will usually fully factor costs of investing and administering into account and the Cash Equivalent will often be a more realistic assessment guide to the true worth of the pension.

So, the basic problem is that a defined benefit pension which has a Cash Equivalent of, say, £100,000 may provide a very different income on retirement to the defined contribution pension also said to be worth £100,000.

If you are dealing only with defined contribution personal pensions it may be acceptable to rely only upon the Cash Equivalents if:-

  • The value of the CE is not significant and/or the marriage is very short making the involvement of an expert disproportionate. There is no hard or fast rule as to what is significant and different lawyers will have different “rules of thumb.” My working assumption is that a single defined contribution pension worth less than £100,000 may not justify further expert assistance. However, I am aware that others may disagree with that arbitrary cut off and I am afraid that it is for you to decide what is significant in this context; OR
  • The parties’ ages are roughly the same; AND
  • The parties health and smoker status are the same; AND
  • There is no crafty small print which makes a defined contribution pension behave like a defined benefit/final salary pension (e.g. a defined contribution pension which has a guaranteed annuity rate upon retirement).

In other circumstances the investment of a few hundred pounds for advice from an Independent Financial Adviser may well be strongly advisable.

Where is the best online guidance?

The Family Justice Council has recently published a paper, “Sorting out Finances on Divorce”  to assist litigants in person navigate divorce settlements without a lawyer. This is essential reading. At pages 42 to 47 there is an admirably clear exposition of how pensions should be treated upon divorce. This is a very important document which judges will take notice of. If you are trying to settle a case without going to court then treat this as your trusty guide on how a court may approach your case. You are not bound to agree a settlement in exactly the same terms as a court would determine it, but it is often helpful to negotiate “in the shadow of the law”, i.e. with a rough idea of the range of possible outcomes and approaches a court would have in mind.

The Family Justice Council also recommends that you seek advice from an Independent Financial Adviser.

How do I find the right pension expert to help me?

But who do you turn to? There is a bewildering array of “experts” out there and if you can scrimp together the professional fees to see an Independent Financial Adviser you want to know that the money is well spent.

I cannot advise you who to go and see but can offer the following thoughts. Advising on pensions on divorce is a highly specialised area and many would agree that there are only a small handful of truly expert Independent Financial Advisers out there (and here I am also including Chartered Financial Planners, who are Independent Financial Advisers who have passed further stringent professional examinations).

In finding a true expert you may have to travel to see them or conduct your business over the phone with them. I cannot provide a definitive list of experts who I regard as suitable, but make this (personal) suggestion. I was involved in a project which had discussions with many Independent Financial Advisers and actuaries. It is called Apples or Pears: Pension Offsetting on divorce. There is a list of experts who were involved within the paper which may assist your search. I was also assisted by further experts in another paper called “Another Witches’ Brew”  (so called because pensions can get very complicated). There will be other true experts out there who were not involved in either paper, but this is a suggested start in your search for help.

You will want to get “triage” advice in the first instance and a good pension expert will then be able to advise whether you will also need the assistance of an actuary. An actuarial report may cost up to £1,500 + VAT but, if required, may be a very prudent investment. A court would require this cost to be shared equally between both parties.

Disclaimer As with all posts on this blog, this post is no substitute for legal advice and should not be relied upon as such. No responsibility is accepted for any action taken or refrained from as a result of reading this blog.

Not So Special Guardians

Since the conviction of Special Guardian Kandyce Downer for the murder of little Keegan Downer there have been reports that the government has tightened up the assessment process for special guardians in the hope of preventing this sort of thing happening again (see here for example in The Times [paywall]: Adoption Loophole Is Tackled After Baby’s Death. In fact although Keegan died last September, the review of SGOs was already underway before then, probably in part as a result of the tragic death of another child under special guardianship (Shanay Walker), along with representations made by adoption organisations (BAAF).

The review led to the tightening of regulations in February of this year, some months before the conviction of Kandyce Downer. The Serious Case Review about Keegan Downer’s death has yet to conclude, although it seems likely that the bulk of the work has been done and the reviewers have been awaiting the outcome of the trial before finalising their report.

Until the SCR has been published we don’t really know where the blame lies (if indeed it can be laid anywhere other than at the door of Kandyce Downer). We don’t know where the child protection system went wrong or indeed if this death was preventable in the sense of it having been possible for this to have been foreseen. Maybe the special guardianship assessment was weak, maybe not.


There has been a lot of rhetoric about the risks of SGOs in the wake of this case (not just in the wake of this case but especially so), for example :

Hugh Thornbery, chief executive of Adoption UK, has urged the Government to tighten the laws surrounding SGOs, which he said have increasingly been seen by local authorities as a “cheap option” even though it leaves children in “potentially risky placements”…

“Some may say SGOs are a quicker and less costly alternative to adoption at a time when councils’ budgets are cut to the bone but we believe this flies in the face of good practice and common sense,” said Mr Thornbery.

“By taking a child from birth parents and placing them with someone who is only ‘just good enough’ totally fails to understand the quality of parenting that these children will need.”

In the same article containing the above Adoption UK quote, we hear Coram BAAF making a similar complaint.

John Simmonds, director of policy research and development at Coram BAAF, said that a lack of time and resources leads to local councils making rushed decisions about placing children with special guardians. “There is a very real risk that by placing a child with a special guardian, the child can lose contact with the local authority very quickly after the order is made,” he said.

Whilst I welcome the tightening of the assessment process for SGOs these criticisms are criticisms of SGOs themselves not just the assessment process. I’m not sure of the logic in suggesting SGOs are inappropriate because they lead to a loss of contact with the LA very quickly – once an adoptive order is made the same applies and complaints about the lack of support for adoptive parents are commonplace (and acknowledged in recent government policy).

Although the subbie who wrote the headline for the Telegraph article I’ve been quoting initially made the slightly large mistake of referring to Kandyce Downer as a foster carer (thus rather missing the point of the article! It’s now corrected), the article correctly places all this in the context of the supreme irritation of some in the Adoption establishment at the impact of Re B and Re B-S, saying :

The National Adoption Leadership Board warned that the two judgements “resulted in inaccurate assumptions” drawn by local councils about where to place vulnerable children. Following the judgements, the number of adoptions has halved while the use of SGOs has rocketed, with 3,330 issued between April 2013 and March 2014, compared with 1,290 in 2010. This rose again to 5,300 in 2015.

Which leads me to ponder about something that ministers did NOT do in light of the SGO review (which I confess I am not completely au fait with) : they amended the guidance on assessment but didn’t amend the task set out in statute for the judges. This is interesting, because whilst an SGO assessor is now directed to have a more acute focus on the longer term capacity to care and meet a child’s needs as a SG, there is no equivalent refocusing of judicial attention. Of course a judge will be looking at a more honed and robust SG report (one assumes) if it has been written post Feb 16 and one would hope that would help a judge make better decisions. But it would have been open to ministers to take steps to require a judge to apply the expanded ACA 2002 welfare checklist to decisions about special guardianship as well as decisions about adoption. But they didn’t do that. And now I’ve thought of it I’m sort of wondering why…wouldn’t it have closed the loop and forced everyone to sing from the same hymn sheet? Perhaps the answer is that secondary legislation to amend the regulations is easy and quick, whereas amendments to primary legislation are more complex and slow – the SGO Review Report promises that the government will “Actively consider whether further changes are required to the legal framework that underpins decision making around special guardianship”. Perhaps that is not abandoned as much as it is just not yet actioned, but at the moment it seems rather anomalous.

A little professional restraint

There have been a number of times over recent years where I’ve been asked whether or not I (or colleagues of mine) could give some mini-advice via online forums or groups, responding to enquiries by providing short initial responses. I had such a request recently from one website. I declined, partly because of workload, but also partly because of regulatory issues.

There are many who would (entirely legitimately) see this sort of thing as high risk, and who would not see any good business case for giving one’s time up on this sort of thing. This is particularly so in light of a recent judgment from the Court of Appeal on the potential for a claim in negligence against a professional offering advice, see Burgess & Anor v Lejonvarn [2016] EWHC 40 (TCC) (15 January 2016) where Alexander Nissen QC (sitting as a Deputy High Court Judge) held :

In conclusion, it is established that in law a duty of care extends to the protection against economic loss in respect of both advice and any service in which a special skill is exercised by a professional. The duty can extend to negligent omissions as well as the performance of negligent acts. For present purposes, the relevant ingredients giving rise to the duty are an assumption of responsibility by the provider of the service coupled with reliance by the recipient of the service, all in circumstances which make it appropriate for a remedy to apply in law. The passages above make specific reference to the fact that a duty of care may be found to arise even in circumstances where services are performed gratuitously and in the absence of a contract. However, as identified by Lord Goff, in the absence of a contract it is important to exercise greater care in distinguishing between social and professional relationships.

There might be a business case for doing this sort of pro bono work (inevitably it would be pro bono) – it may lead to instructions further down the line – in theory at least – or may generate more nebulous reputational benefits. On the other hand quite possibly there is no such business case. But my post isn’t really about whether or not there really is a good business case for doing this sort of thing, or even about the moral case for doing it either. If I were bothered about that I’d try it and see if the business case was made out in reality.

No, what is irritating me is the fact that I couldn’t test this out if I wanted to. That I couldn’t even do this for altruistic reasons should I feel called to help out. Because our code of conduct prohibits it.

There are two kinds of legal services. There are the kind which are “reserved legal activities” – the conduct of litigation and the exercise of rights of audience – and those which are not reserved. Reserved legal activities are basically the things that only qualified lawyers can do. To carry provide litigation or advocacy if not authorised to do so is a criminal offence. That’s all well and good but there is a whole lot of stuff which can fall within “legal services” that is not “reserved”, in particular the provision of advice. Any old muppet, legally trained or not, experienced or not, insured or not, can provide legal advice. My 7 year old son can provide legal advice (I wouldn’t recommend him).

So any lawyer can provide snippets of legal advice through online forums or community groups, perhaps to help out an organisation that gets regular enquiries from desperate parents? Right? Wrong.

Rule s24  of the BSB Handbook says this :

You may only supply legal services if you are appointed or instructed by the  court  or instructed:

1 by a  professional client (who may be an  employee of the  client ); or
2 by a  licensed access client , in which case you must comply with the  licensed access rules ; or
3 by or on behalf of any other  client , provided that:
a the matter is  public access instructions and:
i you are entitled to provide public access work and the  instructions are relevant to such entitlement; and
ii you have notified the  Bar Standards Board that you are willing to accept instructions from lay clients; and
iii you comply with the public access rules; or
b the matter relates to the  conduct of litigation and
i you have a litigation extension to your  practising certificate ; and
ii you have notified the  Bar Standards Board that you are willing to accept instructions from lay clients.

You can read the Handbook here, if you like that kind of torture. Good luck navigating it – it’s utterly impenetrable, I think it is some kind of parody of how lawyers like their documents to be. Bring back the code I say.

So. Boiled down this means that I can only supply legal services if instructed by a solicitor, if I act through public access or through licensed access. I can’t just advise any time any place (I am not like Martini). This is why, when we set up our pro bono clinic in Bristol recently we had some difficulty getting cracking with a scheme that would work for barristers – ultimately we were able to operate only under the licensed access umbrella of the Bar Pro Bono Unit. We could not just rock up at court and advise people.

[EDIT : To go back to the online forum scenario – this effectively makes it impossible to help. It would be impracticable to do via public access because of all the hoo hah with assessing suitability and the need to send client care letters etc, even if one had the address details, and there is no other route available.]

This is not a problem that burdens solicitors. And what’s more it is not a problem that burdens McKenzie friends. And this what irks me. If I had the time and the inclination, I could be out there chipping in when able, offering (I hope) reasonably coherent snippets of advice (appropriately limited so as not to make my insurers’ hair stand on end no doubt), to the benefit of those individuals who might not otherwise have any support. So instead I suspect many community groups and forums are advised by McKenzie friends – perhaps some of whom are highly skilled and experienced – and no doubt some of whom are really not.

Why is our legal services market organised this way? To restrict the skilled, experienced, insured and regulated from helping out but leaving the unregulated and highly variable cottage industry McKenzies to offer dubious advice and identify vulnerable potential clients who they can charge more to provide “support” and “advice” than they would pay to a qualified lawyer who would throw in drafting and advocacy for the price? Not all McKenzies charge money, and not all charge more than a lawyer would – but I’ve certainly seen a few who do.

It feels to me as if in choosing to regulate one part of the market whilst leaving the other part to do as it pleases we leave litigants very vulnerable, and at risk of being diverted away from benefiting from legal services from qualified legal professionals. One of the first pieces of advice most McKenzies will give in my experience is that a litigant doesn’t need a lawyer, perhaps even that a lawyer will be an expensive waste of money (or worse). My recent experience on radio 4 was a reminder of how negative the views of some McKenzie friends can be about lawyers.

Frankly, I have enough on my plate without worrying about helping out on some advice forum. But others may take a different view. And I do wonder whose interests the BSB are protecting in preventing us from doing so if we wish. Certainly not the consumers of legal services or the bar either for that matter. If, as I suspect, this is the old rubbish about protecting the specialness of the bar as a referral service it’s rot. That ship has sailed. I’m no competition lawyer, but isn’t this a restrictive practice? Why do we have our hands tied behind our backs when trying to compete against McKenzie friends?