Amin v Amin

A court enforcing a financial order cannot vary the original lump-sum order or make a second lump-sum order. It may, however, use jurisdiction preserved by an adjourned pension-sharing application to make a pension-sharing order and supplemental enforcement orders. Where non-payment leaves a pension as the only significant available domestic asset, recourse to it may be proper. The court may use a practical percentage to enforce part of a cash lump sum without expert actuarial evidence where precise equivalence cannot be identified, provided it has considered the difference between pension and cash values. An order for sale of property and payment of accrued interest from the proceeds under section 24(A) of Matrimonial Causes Act 1973 is enforcement, not variation.

The former wife applied under Part III of the Matrimonial and Family Proceedings Act 1984 for financial relief. On 1 April 2014 Moylan J ordered the former husband to pay a £350,000 lump sum, adjourned the wife’s pension-sharing application, and restrained dealings with the pension. The husband paid nothing.

On 16 July 2015 Moylan J made a 76% pension-sharing order: 50% represented the provision originally contemplated and 26% enforced £200,000 of the unpaid lump sum. He also ordered the sale of another property and payment of £26,772 in accrued interest from the net proceeds. The husband appealed, contending that these orders varied or duplicated the lump-sum order, that recourse to the pension was impermissible or a discretionary error, and that the calculation failed to treat pension and cash values alike.

The appeal was dismissed unanimously. The Court of Appeal held:

1. The judge had no jurisdiction to vary the original lump-sum order or make a second lump-sum order. He did have jurisdiction, under the structure of the earlier order, to make a pension-sharing order and supplemental orders enforcing the unpaid lump sum.
2. The 50% pension share represented the pension-sharing order contemplated in April 2014. The additional 26% was recourse to the pension, pro tanto, to enforce £200,000 of the unpaid lump sum. The total 76% order was therefore within jurisdiction.
3. The exercise of discretion was proper. The husband had paid nothing, the pension was the only significant available asset within the jurisdiction, and the earlier order had made clear that the pension might be used for enforcement if necessary.
4. Martin-Dye v Martin-Dye [2006] EWCA Civ 681, [2006] 2 FLR 901 did not require a different result. The judge had considered the difference between pension and cash values and was entitled to adopt the practical calculation used. Expert actuarial evidence was not required to produce a more precise pound-for-pound calculation.
5. The order for sale of the property and payment of £26,772 accrued interest from the net proceeds was an enforcement order under section 24(A) of the Matrimonial Causes Act 1973. It was neither a variation nor a second lump-sum order.

The successful litigant in person was entitled in principle to costs. Her costs were summarily assessed at £300.

1. Court of Appeal (Civil Division): The appeal from Moylan J’s order dated 16 July 2015 was dismissed. The court upheld the pension-sharing and property-sale enforcement orders.
2. High Court of Justice, Family Division (Leeds District Registry): Moylan J’s order of 16 July 2015 provided for a 76% pension share and payment of accrued interest from the sale proceeds of property. It followed his 1 April 2014 order for a £350,000 lump sum, which had adjourned the pension-sharing application.