Pension attachment order allowed under MCA 1973 s. 25B
Under MCA 1973 s. 25B, courts can make a pension attachment order requiring a percentage of pension payments to go to the other spouse.
Official text
·
MCA 1973 s. 25B — United Kingdom
The matters to which the court is to have regard under section 25(2) above include— in the case of paragraph (a), any benefits under a pension arrangement which a party to the marriage has or is likely to have, and in the case of paragraph (h), any benefits under a pension arrangement which, by reason of the dissolution or annulment of the marriage, a party to the marriage will lose the chance of acquiring, and, accordingly, in relation to benefits under a pension arrangement , section 25(2)(a) above shall have effect as if “in the foreseeable future” were omitted. In any proceedings for a financial provision order under section 23 above in a case where a party to the marriage has, or is likely to have, any benefit under a pension scheme, the court shall, in addition to considering any other matter which it is required to consider apart from this subsection, consider— whether, having regard to any matter to which it is required to have regard in the proceedings by virtue of subsection (1) above, such an order (whether deferred or not) should be made, and where the court determines to make such an order, how the terms of the order should be affected, having regard to any such matter. The following provisions apply where, having regard to any benefits under a pension arrangement , the court determines to make an order under section 23 above. To the extent to which the order is made having regard to any benefits under a pension arrangement , the order may require the person responsible for the pension arrangement in question, if at any time any payment in respect of any benefits under the arrangement becomes due to the party with pension rights, to make a payment for the benefit of the other party. The order must express the amount of any payment required to be made by virtue of subsection (4) above as a percentage of the payment which becomes due to the party with pension rights. Any such payment by the person responsible for the arrangement — shall discharge so much of his liability to the party with pension rights as corresponds to the amount of the payment, and shall be treated for all purposes as a payment made by the party with pension rights in or towards the discharge of his liability under the order. Where the party with pension rights has a right of commutation under the arrangement, the order may require him to exercise it to any extent ; and this section applies to the any payment due in consequence of commutation in pursuance of the order as it applies to other payments in respect of benefits under the arrangement . The power conferred by subsection (7) above may not be exercised for the purpose of commuting a benefit payable to the party with pension rights to a benefit payable to the other party. The power conferred by subsection (4) or (7) above may not be exercised in relation to a pension arrangement which— is the subject of a pension sharing order in relation to the marriage, or has been the subject of pension sharing between the parties to the marriage. In subsection (1) above, references to benefits under a pension arrangement include any benefits by way of pension, whether under a pension arrangement or not.
Section 25B is how pensions entered the section 25 exercise. Subsection (1) does two things at once. It brings benefits under a pension arrangement expressly within the resources in section 25(2)(a) and within the lost benefits in section 25(2)(h). And it disapplies the words "in the foreseeable future" for pensions - so a pension that will not be paid for twenty-five years is still a resource the court takes into account, which it might not otherwise be.
Subsection (2) adds a duty: in proceedings for a financial provision order where a party has or is likely to have a benefit under a pension scheme, the court must consider whether such an order should be made having regard to those benefits, and if so how its terms should be affected.
Subsections (4) to (8) give the attachment power - what used to be called earmarking. Where the court makes a section 23 order having regard to pension benefits, it may require the person responsible for the pension arrangement, when a payment becomes due to the member, to make a payment for the benefit of the other party. Subsection (5) requires that to be expressed as a percentage of the payment due, not as a fixed sum. Subsection (7) allows the court to require the member to exercise a right of commutation, though subsection (8) prevents that power being used to convert a benefit payable to the member into one payable to the other party. Subsection (9) prevents attachment where the same arrangement is or has been the subject of pension sharing. Attachment leaves the pension in the member's name and depends on them living and drawing it; pension sharing under section 24B splits it outright, and is the more common outcome.
When it applies
A long marriage where the largest single asset is one spouse's occupational pension.
A spouse with no pension of their own after years out of the workforce.
A pension that will not come into payment for decades.
Deciding between a pension sharing order and an attachment order.
Offsetting a pension against a larger share of the house.
What this section does not say
×It is not pension sharing. Sharing is a separate order under section 24B; section 25B deals with how pensions enter the section 25 exercise and with attachment.
×It does not split the pension. An attachment order redirects payments when they fall due; the pension stays in the member's name.
×It does not survive independently of the member. Attachment depends on payments becoming due to the member, which is one of its recognised weaknesses.
×It does not fix a share. Any payment required must be expressed as a percentage of the payment due to the member.
×It does not apply where the same arrangement has been the subject of pension sharing between the parties.
×It does not value the pension. Valuation is an evidential question and often needs an actuary.
Worked examples
Invented situations, written to show how the wording bites. They are not real cases, not judgments and not precedent, and nothing here predicts what would happen in yours.
Illustrative example
The largest asset in a long marriage is one spouse's occupational pension, which cannot be drawn for another twenty years. The member says a pension that far off cannot sensibly be treated as a resource now.
How the wording applies
Subsection (1) answers that directly: it brings pension benefits within section 25(2)(a) and disapplies the words 'in the foreseeable future' for them. So distance in time does not take a pension out of account. The fact that then decides how it is dealt with is the difference between attachment under this section - which redirects payments when they fall due and depends on the member living to draw them - and a pension sharing order under section 24B, which severs a share now.
How the parties settled it
They obtain a single actuarial report and agree a pension sharing order producing broadly equal incomes at retirement, with the house transferred to the other spouse to balance it.
Illustrative example
One spouse has no pension of their own after years out of the workforce and is offered a larger share of the house instead of anything from the other's pension.
How the wording applies
Subsection (2) imposes a duty on the court to consider whether an order should be made having regard to pension benefits, so offsetting is a choice to be made with eyes open rather than a default. The fact that decides whether the offer is fair is the basis of comparison used: a cash equivalent figure and a capitalised income figure are different numbers, and the section does not value anything - valuation is evidential and usually needs an actuary.
How the parties settled it
They agree to instruct a jointly appointed actuary on the offsetting figure and to settle on the report's midpoint, with the housing share adjusted accordingly.
Say what is happening. A neutral mediator hears your side and the other party's, and walks you both to a written agreement. In the advanced settings you can ask for the decision to be reasoned on the Acts of Parliament that apply in England and Wales.
We copy this text from the official publisher and re-check it against that source on every page load, but we cannot guarantee it is complete, current or free of error, and we accept no liability for any reliance on it. An amendment can take effect before a consolidation catches up. The publisher's own copy is linked below; where the two differ, it is the official one that counts.
This page reproduces the text of MCA 1973 s. 25B in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.