Law Report: Husband's pension fund could be varied on divorce: B v B. - Family Division (Mr Justice Ewbank), 2 April 1993

Click to follow
The Independent Online
A pension fund which was set up by the husband's company during his marriage and which specifically provided for a pension for the spouse of the husband was a post-nuptial settlement which was amenable to variation by the court under section 24(1)(c) of the Matrimonial Causes Act 1973 so as provide the wife with an immediate annuity and a pension.

Mr Justice Ewbank dismissed the husband's appeal against District Judge Plumstead's order varying the husband's pension fund but allowed his appeal against the lump sum order.

The husband and wife married in 1977. In 1980 a pension fund was set up by the husband's company for the husband. The rules of the pension fund provided for a pension for the spouse of the husband.

In 1989 the wife filed a petition for divorce. She applied, inter alia, for the pension fund to be declared a post-nuptial settlement and for it to be varied in her favour.

The district judge decided that the pension fund was a post-nuptial settlement and varied it to provide the wife with an immediate annuity and a pension to be paid on the husband's death. Periodic payment and lump sum orders were also made.

John Elvidge (Girlings, Canterbury) for the husband; Martin Pointer (Paisner & Co) for the wife.

MR JUSTICE EWBANK said that under section 24(1)(c) of the 1973 Act, the court could make an order varying for the benefit of the parties of the marriage, or for either of them, any ante-nuptial or post- nuptial settlement made on the parties to the marriage.

There were two aspects to be considered. First, was there a nuptial element in the pension fund? The pension fund specifically provided for a pension for the spouse of the husband. At all material times that spouse had been the wife. His Lordship was of the clear view that there was a nuptial element in the pension fund.

The second point was, did the pension fund comprise a settlement? In Bosworthick v Bosworthick (1927) P 64 the word 'settlement' was construed liberally. In Lort-Williams v Lort-Williams (1951) P 395, Lord Justice Denning said that the word 'settlement' included any provision made by a husband for the future benefit of his wife if it proceeded on the footing of the then-existing marriage.

Applying those tests, this pension fund fell within the definition of a post-nuptial settlement. It was therefore amenable to variation by the court.

There was no ground for suggesting that the district judge was in error in varying the fund to make provision for the wife. However, the lump sum would be reduced from pounds 150,000 to pounds 110,000.

Ying Hui Tan, Barrister

Comments