Amendment No. 41 is cognate to amendment No. 32 and they may be taken together. Is that agreed? Agreed.
SECTION 11.
I move amendment No. 32:
In page 12, subsection (1), line 30, after "nullity" to insert "or a decree of judicial separation".
Section 11 enables the court in cases of nullity only, to order the splitting of a pension, that is, order that the spouse's interest in his or her pension scheme be reduced by an amount and the amount by which it is reduced be used to create a separate pension benefit for the other dependent spouse, or the earmarking of a pension, that is, order that the dependent spouse may retain an interest in the member spouse's pension and that a proportion of the benefit be paid directly to the dependent spouse when the pension benefits involved come on stream. The effect of the amendment would be to extend the court's power to judicial separation cases.
My understanding is that some pension schemes give a wide discretion to trustees as to when payments can be made and consequently there may be no guarantee that a separated spouse will benefit from the scheme of the other spouse. This amendment will help to get over that difficulty should it arise in any particular case. It is extending the splitting provision to the separation cases which Deputies will welcome.
Amendment agreed to.
Amendments Nos. 33, 35, 39, 43 and 59 are consequential on amendment No. 34 and all may be taken together. Is that agreed? Agreed.
I move amendment No. 33:
In page 12, subsection (1), line 34, after "providing" to insert "for either or both of the following".
The effect of amendment No. 34, which is the key one, is twofold. It provides that pension split orders will only apply to the main pension, that is the benefit payable to the member. Section 11 (1) (a) as it stands provides for the splitting of the pension including survivor's benefit. I am now satisfied that any adjustment of the survivor's benefit in support of a spouse would be best dealt with by the court on an earmarking basis. That is already provided for in subsection (1) (b) (ii). The court is being given discretion as to whether the valuation of a spouse's interest in a pension scheme should be based on the valuation supplied by the trustees of that scheme or on some basis determined by the court. The section as it stands could be read as meaning that the valuation must in all cases be that supplied by the trustees. However, while that valuation may be acceptable in most cases there may be cases where the valuation is disputed by one of the parties. The amendment leaves it open to the court to intervene in those cases.
Amendment agreed to.
I move amendment No. 34:
In page 12, subsection (1), lines 35 to 51, and in page 13, lines 1 to 20, to delete paragraphs (a) and (b) and substitute the following:
"(a) (i) for the transfer of the interest (not being an interest that is a benefit payable to the member spouse's widow, widower or dependants, or any other person, on the death of the member spouse) or a specified part thereof (the value of the interest being determined by the trustees of the scheme, or, if the court should so determine, in such other manner as the court may specify) existing at the time of the making of the order for the grant of the decree, of the member spouse in the scheme to the other spouse so as to provide for that other spouse, at the option of those trustees, a benefit under the scheme as if that other spouse was a member of the scheme or a benefit under another scheme approved by the court within such time as may be specified in the order, or
(ii) the payment of a benefit, or a specified part of a benefit, payable to the member spouse under the scheme, as on and from the time that it becomes payable or at any time thereafter, to either of the following or to both of them in such proportions as the court may determine at the time of the making of the pension adjustment order or at any time thereafter, as the court considers appropriate, that is to say:
(I) the other spouse,
(II) such person as may be specified in the order for the benefit of a dependent member of the family,
or
(b) the payment of a benefit payable under the scheme, being a benefit for a widow, widower or dependants of the member or any other persons on the death of the member spouse, or a specified part of such a benefit to either of the following or to both of them in such proportions as the court may determine, that is to say:
(i) the spouse applying for the order,
(ii) such other person as may be specified in the order for the benefit of a dependent member of the family,
the question whether any of the benefit be so paid and the amount (if any) thereof to be so paid being determined by the court pursuant to an application made to it in that behalf not more than 12 months after the time when representation is first granted under the Act of 1965,".
Amendment agreed to.
I move amendment No. 35:
In page 13, subsection (2), line 25, to delete "subparagraph (i) or (ii) of subsection (1) (b)" and substitute "paragraph (a) (ii) or (b) of subsection (1)".
Amendment agreed to.
Amendments Nos. 36 and 45 are related and may be taken together. Is that agreed? Agreed.
I move amendment No. 36:
In page 13, subsection (2), lines 29 to 31, to delete "the provisions of section 16 (2) and any representations made by those trustees in relation to the matter" and substitute "any representations made by any person to whom notice of the application has been given under this section or section 40".
The purpose of this amendment is to ensure that all parties likely to have an interest in the making of a pension adjustment order are made aware of the application for such an order. The section as it stands obliges the applicant spouse to inform only the trustees of the scheme of the making of the application and since other persons may by involved — where, for example, a person has remarried — it is desirable that those persons should also be informed about the application for the pension adjustment order. The amendment deals with that aspect.
Amendment agreed to.
I move amendment No. 37:
In page 13, between lines 38 and 39, to insert the following subsections:
"(4) Where, after the making of an order under paragraph (a) (ii) or (b) of subsection (1), the member spouse concerned ceases to be a member of the pension scheme concerned before his or her death, the trustees of the scheme may, for the purpose of complying with the order, transfer the interest of the member spouse in the scheme—
(a) to a policy or contract of assurance—
(i) under which the beneficiaries are the member spouse and any other person who, by virtue of the member spouse's membership of the scheme, is a beneficiary under the scheme, and
(ii) which has been approved by the Revenue Commissioners under Chapter II of Part I of the Finance Act, 1972,
or
(b) to another pension scheme of which the member spouse is a member for his or her benefit,
(and, if they do so, they shall give notice to the court of the transfer).
(5) (a) The registrar or clerk of the court concerned shall—
(i) cause a copy of or an order under subsection (1) (a) (i) to be served on the trustees of the pension scheme concerned, and
(ii) cause a copy of or an order under paragraph (a) (ii) or (b) of subsection (1) to be served on the trustees of the pension scheme concerned and on the trustees of any other pension scheme of which the member spouse concerned becomes a member after the date of the making of the order.
(b) Where a copy of an order under paragrpah (a) (ii) or (b) of subsection (1) is served on the trustees of the pension scheme and the member spouse concerned ceases to be a member of the scheme before his or her death, the trustees shall, within 10 days of the cessation, inform the court and the other spouse of that fact.".
This amendment provides for persons against whom a pension adjustment order is made who either leave employment before normal retirement or change employment. The new subsection (4) provided for in the amendment provides that where a spouse against whom an earmark order is made ceases to be a member of a pension scheme, for example, because of a change of employment the trustees concerned will have been deemed to have met their obligations in respect of the court order by either transferring the interest into a buy-out bond or transferring it to the member's new employment, if that employment has a pension scheme.
The new subsection (5) provided for in the amendment requires the registrar of the court or the court clerk to cause the pension adjustment order to be served on the pension trustees. It also provides that where the member spouse ceases to be a member of the scheme the trustees must inform the court and the non-member spouse of this fact. This is to cover cases where the pension holder changes employment so the pension may transfer to the new employment.
Will the Minister elaborate on what happens if the person who has changed employment does not have a pension scheme in the new employment?
We are providing in the amendments that it be dealt with in either of two ways — a buy-out bond in respect of the accumulated pension at that point, or the transfer of that pension into his new employment pension scheme if he has one.
Amendment agreed to.
I move amendment No. 38:
In page 13, subsection (5) (a), lines 46 and 47, to delete "since the granting of the decree of nullity concerned".
Amendment agreed to.
I move amendment No. 39:
In page 13, subsection (5) (b), line 48, to delete "subparagraph (i) of subsection (1) (b)" and substitute "paragraph (a) (ii) or (b) of subsection (1)".
Amendment agreed to.
I move amendment No. 40:
In page 13, subsection (5), lines 50 to 52, to delete paragraph (c) and substitute the following:
"(c) Upon the death or remarriage of the spouse in whose favour an order under subsection (1) (a) (i) is made, the order shall cease to have effect and the interest or part of an interest transferred to that spouse by the order shall revert to the member spouse concerned and any value accrued to the interest or part shall vest in the member spouse.
(b) Upon the death or remarriage of the spouse in whose favour an order is made under subsection (1) (a) (ii) or (b), the order shall, to the extent that it applies to that spouse, cease to have effect.".
The Bill provides generally that where financial relief is ordered by the courts relief will cease on the remarriage of the spouse in whose favour relief has been ordered. The new subsection (5) (c) will bring section 11 into line with the other relevant sections of the Bill. The new subsection also provides, in particular, that where a pension split order has been made by the court and the spouse in whose favour the order was made dies, the interest transferred will revert to the spouse against whom the original order was made. This is to ensure that the surviving spouse who is a member of the pension scheme can retain full pension benefit to which he or she has contributed once the split portion of the pension is no longer required to be paid to the former spouse.
The new subsection (5) (d) provides that where the dependent spouse remarries the earmark order ceases to the extent only that it applies to that spouse. The purpose of the amendment is to safe-guard the position of dependent children who may be included in the earmark order.
Amendment agreed to.
I move amendment No. 41:
In page 14, subsection (6), line 11, after "nullity" to insert "or a decree of judicial separation".
Amendment agreed to.
I move amendment No. 42:
In page 14, subsection (6), line 12, after "instituted" to insert "and shall continue so to apply notwithstanding the grant of a decree of nullity".
The purpose of this amendment is to ensure that the dependent spouse in whose favour a pension adjustment order has been made can obtain information on the other spouse's pension scheme. This is to ensure that he or she will at all times have access to information or changes in the arrangements the member spouse might make in his or her pension.
Amendment agreed to.
I move amendment No. 43:
In page 14, subsection(7) (a), line 13, to delete "paragraph (a)" and substitute "paragraph (a) (i)".
Amendment agreed to.
I move amendment No. 44:
In page 14, subsection (7), lines 20 to 23, to delete paragraph (b) and substitute the following:
"(b) For the purposes of subsection (1) (a) (i), the value of the interest concerned and, where an order is made under that provision, the treatment of any part of the interest remaining in the pension scheme concerned after effect has been given to the order shall, if relevant guidelines under section 10 (1) (c) of the Pensions Act, 1990, are in force, be determined in accordance with those guidelines.".
Under subsection (7) (b) of section 11 the value of an interest in a pension scheme would, where appropriate, be determined in accordance with the Second Schedule to the Pensions Act, 1990. This amendment provides that for the purposes both of valuing the pension benefit and the subsequent administration of the pension concerned, those matters shall be determined in accordance with guidelines issued by the Pensions Board under the Pensions Act, 1990. This is to update the valuation positions under the pension Act to a more sophisticated basis under these guidelines issued by the Pensions Board.
Amendment agreed to.
Section 11, as amended, agreed to.