Often one of the most valuable assets in a divorce is a pension. There are various ways in which to deal with pension provisions, including sharing or splitting that pension now. This means that the pension will be available to the person who receives the pension share, and it may also be open to them to invest it in a pension provider of their choice.
What, however, happens in a situation where one of the parties in the divorce proceedings has a foreign pension? This was explored recently in the case of Goyal -v- Goyal, heard by Mr Justice Mostyn. Previously the Court of Appeal had set aside a previous Order that made declarations as to the beneficial ownership of an Indian pension fund and directed the husband to transfer to the Wife his interest in that fund. The husband argued that a Pension Sharing Order could not be made in respect of an overseas pension, and the wife had not adduced evidence that such an Order would be enforceable in India.
The Judge found that pension sharing was not available to a foreign pension however, that did not mean that there were no other routes to achieve a direct sharing of a foreign pension. It was suggested that an alternative method is to provide undertakings to obtain an Order in a foreign jurisdiction to split a pension in that foreign country. To achieve this, the Court must be satisfied that the foreign pension provider will give effect to an agreement like this.
The wife also failed to provide evidence that a Pension Sharing Order would be reciprocally enforceable in India.
This is an interesting Judgment as even the Judge wasn’t entirely sure, without the assistance of other Barristers and Solicitors, as to what the actual position was. This is because Pension Sharing Orders or any issues concerning pensions are complex, and this is even more so if you are dealing with a foreign pension.
When parties get divorced, and they have finances to resolve they are under a duty to provide full frank and clear financial disclosure and this means providing disclosure of all assets including foreign ones. A pension with a foreign pension provider forms part of the matrimonial pot for division.
It is important if you have a foreign pension or any pension provisions that you seek expert legal advice. Specialist financial advice is also likely to be required.
Anthony Jones is Head of Family Law and is a Resolution Accredited Specialist. For more information or a second opinion, please contact him on 0161 641 4555 or email firstname.lastname@example.org