Q&As

A pension sharing order was made by the court, but wasn’t implemented by the parties. The transferor now wishes to access the pension that was the subject of the pension sharing order, but cannot until the pension sharing order has been implemented. The transferee cannot be located. What action can be taken to vary or discharge the pension sharing order so that the transferor can access their pension?

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Produced in partnership with Katherine Illsley of 4 King’s Bench Walk
Published on LexisPSL on 03/12/2018

The following Family Q&A produced in partnership with Katherine Illsley of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • A pension sharing order was made by the court, but wasn’t implemented by the parties. The transferor now wishes to access the pension that was the subject of the pension sharing order, but cannot until the pension sharing order has been implemented. The transferee cannot be located. What action can be taken to vary or discharge the pension sharing order so that the transferor can access their pension?

A pension sharing order was made by the court, but wasn’t implemented by the parties. The transferor now wishes to access the pension that was the subject of the pension sharing order, but cannot until the pension sharing order has been implemented. The transferee cannot be located. What action can be taken to vary or discharge the pension sharing order so that the transferor can access their pension?

Pursuant to section 31(2)(g) of the Matrimonial Causes Act 1973 (MCA 1973), the court has the power to vary or discharge a pension sharing order before the decree has been made absolute. The variation would not then take effect until the decree absolute (MCA 1973, s 31(4B)). If the parties do not yet have decree absolute, and the pension sharing order has not been implemented, then the transferor may seek a variation or discharge of this part of the order. The discretion of the court when considering such an application is considered to be almost unfettered. See Practice Notes: Pensions on divorce etc—variation and appeals and Variation of financial orders.

Once the decree has been made absolute, then the court no longer has the power to vary or discharge the pension sharing order.

There are several options that the transferor could explore if the decree has been made absolute. First, an application could be made to the court for

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