Divorced women's rights on pensions still at stake

Nic Cicutti finds that the question of divorcees getting part of their husbands' pension is wide open

It is not the first time that Law Lords have cocked a snook at Parliament. But yesterday's long-awaited judgment in the case of Brooks v Brooks throws open again the entire question of how women should receive part of their former husbands' pensions at divorce.

At stake are the rights of up to 150,000 people who divorce each year. Women, who traditionally have been dependent on their husband's pensions for their own income, have often been left with little or nothing when a a marriage breaks up.

Until last week, the Government thought it had won the day with its own plans for reform. Despite arguments from the Goode Committee, set up post-Maxwell, ministers have consistently rejected suggestions that a pension should be considered an immediate part of a divorce settlement. They were only forced to act after persistent lobbying .f

What is being proposed in the current Pensions Bill, going through its final Parliamentary stages, is a strange mish-mash. Women will be entitled to a share of their former husband's pension, however, they will have to wait until their ex-partners reach retirement age before they receive it.

This line has been heavily criticised by many experts on the grounds that it leaves wives dependent on their former husbands - at a time when for many the last thing they want to do is keep track of their ex-partners work and other activities,

It also raised the serious possibility that many women would receive nothing. If the ex-husband died before he retired the pension scheme would not be obliged to give them anything.

The Brooks case has changed things. Ostensibly, it relates not to the Pensions Bill but to the older and separate Matrimonial Causes Act.

Lawyers for Anne Brooks argued that a pension scheme can be part of a post-nuptial settlement, which a court can vary. Although lawyers for Mr Brooks argued, among other things, that the Pensions Bill provided for "ear-marking" of pensions entitlements, this was rejected unanimously yesterday by their Lordships.

Their judgment said: "In most cases, this method would yield nothing for the wife after the husband's death, she no longer being entitled to a widow's pension under the scheme."

Norman Russell, a pensions specialist at Paisner & Co, the law firm that represented Mrs Brooks, said: "It does not give full and immediate rights to a separate pension fund for the ex-wife at the point of settlement. It could be argued, though, that if the former husband is in a generous pension scheme, the woman's best interest lies in staying within it, rather than leaving it."