Q&As

Can a consent order that includes provision for a deferred lump sum and a capital clean break be varied by consent to substitute the lump sum order with a pension sharing order and retain the clean break provisions?

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Produced in partnership with Paul Infield of The 36 Group
Published on LexisPSL on 22/09/2020

The following Family Q&A Produced in partnership with Paul Infield of The 36 Group provides comprehensive and up to date legal information covering:

  • Can a consent order that includes provision for a deferred lump sum and a capital clean break be varied by consent to substitute the lump sum order with a pension sharing order and retain the clean break provisions?

A pension can only be transferred to another person on death or as a result of financial relief proceedings on divorce or dissolution.

If the final order in financial relief proceedings is still executory (and the jurisdiction under Thwaite v Thwaite cannot be invoked, see Practice Note: Coronavirus (COVID-19)—revisiting financial orders, in particular section: Revisiting executory but unimplemented orders—Thwaite jurisdiction), the court has only very limited ways in which it can vary its own orders.

In relation to ordinary lump sum orders, a court can only vary a lump sum if it is payable by installments (as confirmed in Hamilton v Hamilton), and even those orders are only rarely varied. In the solicitor’s negligence case of Westbury v Sampson , the Court of Appeal looked at the scope of the power to vary an order for the payment of a lump sum by installments. Bodey J (in finding that the solicitor had not been negligent) accepted that the variation of the amount of the award was withi

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