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Welfare Reform and Pensions Act 1999 (c. 30)(The document as of February, 2008) Page 15 Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 | P.15 | P.16 58 (1) Section 92 is amended as follows. (2) In subsection (1), for the words from ", or" to "scheme" there is substituted "to a pension under an occupational pension scheme or a right to a future pension under such a scheme". (3) In subsection (4), for the words from "person entitled" to "accrued" there is substituted "pensioner, or prospective pensioner". 59 (1) Section 93 is amended as follows. (2) In subsection (1), for the words from ", or" to "scheme" there is substituted "to a pension under an occupational pension scheme or right to a future pension under such a scheme". (3) In subsection (2)-- (a) for "accrued right to a pension" there is substituted "right", and (b) for "accrued right to a pension under the scheme" there is substituted "right". (4) In subsection (4), for "accrued right to a pension" there is substituted "right". 60 In section 99(2)-- (a) in paragraph (b), after "values)," there is inserted "Chapter II of Part IVA (pension credit benefit transfer values),", and (b) at the end of that paragraph there is inserted-- " (ba) section 33 (time for discharge of pension credit liability) or 45 (information) of the Welfare Reform and Pensions Act 1999, " . 61 (1) Section 124 is amended as follows. (2) In subsection (1), in the definition of "member", for "or pensioner" there is substituted ", pensioner or pension credit". (3) In that subsection, after the definition of "payment schedule" there is inserted-- " "pension credit" means a credit under section 29(1)(b) of the Welfare Reform and Pensions Act 1999, or under corresponding Northern Ireland legislation, "pension credit member", in relation to an occupational pension scheme, means a person who has rights under the scheme which are attributable (directly or indirectly) to a pension credit, "pension credit rights", in relation to an occupational pension scheme, means rights to future benefits under the scheme which are attributable (directly or indirectly) to a pension credit, " . (4) After subsection (2) there is inserted-- " (2A) In subsection (2)(a), the reference to rights which have accrued to or in respect of the member does not include any rights which are pension credit rights. " 62 (1) Section 166 is amended as follows. (2) In subsection (4), for "scheme" there is substituted "arrangement". (3) In subsection (5)(d), for "scheme" there is substituted "arrangement". 63 In section 167(4)-- (a) for "scheme", where first occurring, there is substituted "arrangement", and (b) for the words from "("pension scheme"" to the end of the subsection there is substituted "("pension arrangement" having the meaning given in subsection (1) of section 27 of that Act, as it has effect for the purposes of subsection (5) of the said section 10)." Family Law Act 1996 (c. 27)64 The Family Law Act 1996 has effect subject to the following amendments. 65 (1) Schedule 2 is amended as follows. (2) In paragraph 2, for "section 21" there is substituted "sections 21 and 21A". (3) In the section set out in that paragraph, for the sidenote there is substituted "Financial provision orders, property adjustment orders and pension sharing orders." (4) In that section, in paragraphs (c) and (d) of subsection (2), there is inserted at the end ", other than one in the form of a pension arrangement (within the meaning of section 25D below)". (5) In that section, after subsection (2) there is inserted-- " (3) For the purposes of this Act, a pension sharing order is an order which-- (a) provides that one party's-- (i) shareable rights under a specified pension arrangement, or (ii) shareable state scheme rights, be subject to pension sharing for the benefit of the other party, and (b) specifies the percentage value to be transferred. " (6) In that section, subsections (3), (4) and (5) become (4), (5) and (6). (7) In that section, after subsection (6) (new numbering) there is inserted-- " (7) In subsection (3)-- (a) the reference to shareable rights under a pension arrangement is to rights in relation to which pension sharing is available under Chapter I of Part IV of the Welfare Reform and Pensions Act 1999, or under corresponding Northern Ireland legislation, and (b) the reference to shareable state scheme rights is to rights in relation to which pension sharing is available under Chapter II of Part IV of the Welfare Reform and Pensions Act 1999, or under corresponding Northern Ireland legislation. " (8) In that section, subsection (6) becomes subsection (8). (9) After paragraph 6 there is inserted-- " Pension sharing orders: divorce and nullity6A For section 24B substitute-- " 24B Pension sharing orders: divorce(1) On an application made under this section, the court may at the appropriate time make one or more pension sharing orders. (2) The "appropriate time" is any time-- (a) after a statement of marital breakdown has been received by the court and before any application for a divorce order or for a separation order is made to the court by reference to that statement; (b) when an application for a divorce order has been made under section 3 of the 1996 Act and has not been withdrawn; (c) when an application for a divorce order has been made under section 4 of the 1996 Act and has not been withdrawn; (d) after a divorce order has been made. (3) The court shall exercise its powers under this section, so far as is practicable, by making on one occasion all such provision as can be made by way of one or more pension sharing orders in relation to the marriage as it thinks fit. (4) This section is to be read subject to any restrictions imposed by this Act and to section 19 of the 1996 Act. 24BA Restrictions affecting section 24B(1) No pension sharing order may be made under section 24B above so as to take effect before the making of a divorce order in relation to the marriage. (2) The court may not make a pension sharing order under section 24B above at any time while the period for reflection and consideration is interrupted under section 7(8) of the 1996 Act. (3) No pension sharing order may be made under section 24B above by virtue of a statement of marital breakdown if, by virtue of section 5(3) or 7(9) of the 1996 Act (lapse of divorce process), it has ceased to be possible-- (a) for an application to be made by reference to that statement, or (b) for an order to be made on such an application. (4) No pension sharing order may be made under section 24B above after a divorce order has been made, except-- (a) in response to an application made before the divorce order was made, or (b) on a subsequent application made with the leave of the court. (5) A pension sharing order under section 24B above may not be made in relation to a pension arrangement which-- (a) is the subject of a pension sharing order in relation to the marriage, or (b) has been the subject of pension sharing between the parties to the marriage. (6) A pension sharing order under section 24B above may not be made in relation to shareable state scheme rights if-- (a) such rights are the subject of a pension sharing order in relation to the marriage, or (b) such rights have been the subject of pension sharing between the parties to the marriage. (7) A pension sharing order under section 24B above may not be made in relation to the rights of a person under a pension arrangement if there is in force a requirement imposed by virtue of section 25B or 25C below which relates to benefits or future benefits to which he is entitled under the pension arrangement. (8) In this section, "period for reflection and consideration" means the period fixed by section 7 of the 1996 Act. 24BB Pension sharing orders: nullity of marriage(1) On or after granting a decree of nullity of marriage (whether before or after the decree is made absolute), the court may, on an application made under this section, make one or more pension sharing orders in relation to the marriage. (2) The court shall exercise its powers under this section, so far as is practicable, by making on one occasion all such provision as can be made by way of one or more pension sharing orders in relation to the marriage as it thinks fit. (3) Where a pension sharing order is made under this section on or after the granting of a decree of nullity of marriage, the order is not to take effect unless the decree has been made absolute. (4) This section is to be read subject to any restrictions imposed by this Act. 24BC Restrictions affecting section 24BB(1) A pension sharing order under section 24BB above may not be made in relation to a pension arrangement which-- (a) is the subject of a pension sharing order in relation to the marriage, or (b) has been the subject of pension sharing between the parties to the marriage. (2) A pension sharing order under section 24BB above may not be made in relation to shareable state scheme rights if-- (a) such rights are the subject of a pension sharing order in relation to the marriage, or (b) such rights have been the subject of pension sharing between the parties to the marriage. (3) A pension sharing order under section 24BB above may not be made in relation to the rights of a person under a pension arrangement if there is in force a requirement imposed by virtue of section 25B or 25C below which relates to benefits or future benefits to which he is entitled under the pension arrangement. " " 66 (1) Schedule 8 is amended as follows. (2) In paragraph 9-- (a) in sub-paragraph (2)-- (i) for "or 24A" there is substituted ", 24A or 24B", and (ii) for "to 24A" there is substituted "to 24BB", and (b) in sub-paragraph (3), after paragraph (a) there is inserted-- " (aa) for "or 24B" substitute ", 24B or 24BB"; " . (3) In paragraph 10, in sub-paragraph (2), for "24A" there is substituted "24BB". (4) For paragraph 11 there is substituted-- " 11 In each of sections 25B(3) and 25C(1) and (3), for "section 23" substitute "section 22A or 23". 11A In section 25D-- (a) in each of subsections (1)(a) and (2)(a) and (ab), for "section 23" substitute "section 22A or 23", and (b) in subsection (3), in the definition of "shareable state scheme rights", for "section 21A(1)" substitute "section 21(3)". " (5) In paragraph 16, in sub-paragraph (2), at the end there is inserted-- " (f) after paragraph (f) there is inserted-- " (fa) a pension sharing order under section 24B which is made at a time when no divorce order has been made, and no separation order is in force, in relation to the marriage; " (g) in paragraph (g), for "24B" substitute "24BB". " (6) In that paragraph, after sub-paragraph (3) there is inserted-- " (3A) In subsection (4A), after "paragraph" insert "(de), (ea), (fa) or". " (7) In that paragraph, in sub-paragraph (4), for the words from "subsection (4)" to the end of the first of the inserted subsections there is substituted "subsection (4A) insert--", the second of the inserted subsections is renumbered "(4AA)" and after that subsection there is inserted-- " (4AB) No variation of a pension sharing order under section 24B above shall be made so as to take effect before the making of a divorce order in relation to the marriage. " (8) In that paragraph, after sub-paragraph (4) there is inserted-- " (4A) In subsection (4B), after "order" insert "under section 24BB above". " (9) In that paragraph, after sub-paragraph (7) there is inserted-- " (8) After subsection (7F) insert-- " (7FA) Section 24B(3) above applies where the court makes a pension sharing order under subsection (7B) above as it applies where the court makes such an order under section 24B above. " (9) In subsection (7G)-- (a) for "Subsections (3) to (5) of section 24B" substitute "Section 24BA(5) to (7)", and (b) for "that section" substitute "section 24B above". " (10) After that paragraph there is inserted-- After section 31A insert-- " 31B Discharge of pension sharing orders on making of separation orderWhere, after the making of a pension sharing order under section 24B above in relation to a marriage, a separation order is made in relation to the marriage, the pension sharing order is discharged. " " (11) In paragraph 19, in sub-paragraph (3)-- (a) after "24A" there is inserted ", 24B", and (b) after "property adjustment order," there is inserted "any pension sharing order,". (12) In paragraph 21-- (a) after "24,", in the first place, there is inserted "24B,", and (b) for "24,", in the second place, there is substituted "24BB,". (13) After paragraph 25 there is inserted-- " 25A In section 52(2)(aa), for "section 21A" substitute "section 21". " (14) In paragraph 32, in sub-paragraph (2), for the words from "the words" to the end there is substituted " paragraph (a) substitute-- " (a) make one or more orders each of which would, within the meaning of Part II of the 1973 Act, be a financial provision order in favour of a party to the marriage or a child of the family or a property adjustment order in relation to the marriage;. " " (15) In that paragraph, in sub-paragraph (3), for "21(a)" there is substituted "21(1)(a)". (16) In that paragraph, after sub-paragraph (3) there is inserted-- " (3A) For section 21(1)(ba) substitute-- " (ba) sections 24BA(5) to (7) (provisions about pension sharing orders in relation to divorce); (baa) section 24BC(1) to (3) (provisions about pension sharing orders in relation to nullity); " . (3B) In section 21(3), for "section 23" substitute "section 22A or 23". " (17) At the end of Part I insert-- " The Welfare Reform and Pensions Act 199943A In section 24 of the Welfare Reform and Pensions Act 1999 (charges by pension arrangements in relation to earmarking orders), for "section 23" substitute "section 22A or 23". " Part II Other consequential amendmentsBankruptcy (Scotland) Act 1985 (c. 66)67 The Bankruptcy (Scotland) Act 1985 has effect subject to the following amendments. 68 In section 35(1), in paragraph (a) for "under the said section 8(2) for the transfer of property by him" substitute "a court has, under the said section 8(2), made an order for the transfer of property by him or made a pension sharing order". 69 After section 36C there is inserted-- " 36D Recovery of excessive contributions in pension-sharing cases(1) For the purposes of section 34 of this Act, a pension-sharing transaction shall be taken-- (a) to be a transaction, entered into by the transferor with the transferee, by which the appropriate amount is transferred by the transferor to the transferee; and (b) to be capable of being an alienation challengeable under that section only so far as it is a transfer of so much of the appropriate amount as is recoverable. (2) For the purposes of section 35 of this Act, a pension-sharing transaction shall be taken-- (a) to be a pension sharing order made by the court under section 8(2) of the Family Law (Scotland) Act 1985; and (b) to be an order capable of being recalled under that section only so far as it is a payment or transfer of so much of the appropriate amount as is recoverable. (3) For the purposes of section 36 of this Act, a pension-sharing transaction shall be taken-- (a) to be something (namely a transfer of the appropriate amount to the transferee) done by the transferor; and (b) to be capable of being an unfair preference given to the transferee only so far as it is a transfer of so much of the appropriate amount as is recoverable. (4) Where-- (a) an alienation is challenged under section 34; (b) an application is made under section 35 for the recall of an order made in divorce proceedings; or (c) a transaction is challenged under section 36, if any question arises as to whether, or the extent to which, the appropriate amount in the case of a pension-sharing transaction is recoverable, the question shall be determined in accordance with subsections (5) to (9). (5) The court shall first determine the extent (if any) to which the transferor's rights under the shared arrangement at the time of the transaction appear to have been (whether directly or indirectly) the fruits of contributions ("personal contributions")-- (a) which the transferor has at any time made on his own behalf, or (b) which have at any time been made on the transferor's behalf, to the shared arrangement or any other pension arrangement. (6) Where it appears that those rights were to any extent the fruits of personal contributions, the court shall then determine the extent (if any) to which those rights appear to have been the fruits of personal contributions whose making has unfairly prejudiced the transferor's creditors ("the unfair contributions"). (7) If it appears to the court that the extent to which those rights were the fruits of the unfair contributions is such that the transfer of the appropriate amount could have been made out of rights under the shared arrangement which were not the fruits of the unfair contributions, then the appropriate amount is not recoverable. (8) If it appears to the court that the transfer could not have been wholly so made, then the appropriate amount is recoverable to the extent to which it appears to the court that the transfer could not have been so made. (9) In making the determination mentioned in subsection (6) the court shall consider in particular-- (a) whether any of the personal contributions were made for the purpose of putting assets beyond the reach of the transferor's creditors or any of them; and (b) whether the total amount of any personal contributions represented, at the time the pension sharing arrangement was made, by rights under pension arrangements is an amount which is excessive in view of the transferor's circumstances when those contributions were made. (10) In this section and sections 36E and 36F--
36E Recovery orders(1) In this section and section 36F of this Act, "recovery order" means-- (a) a decree granted under section 34(4) of this Act; (b) an order made under section 35(2) of this Act; (c) a decree granted under section 36(5) of this Act, in any proceedings to which section 36D of this Act applies. (2) Without prejudice to the generality of section 34(4), 35(2) or 36(5) a recovery order may include provision-- (a) requiring the person responsible for a pension arrangement in which the transferee has acquired rights derived directly or indirectly from the pension-sharing transaction to pay an amount to the permanent trustee, (b) adjusting the liabilities of the pension arrangement in respect of the transferee, (c) adjusting any liabilities of the pension arrangement in respect of any other person that derive, directly or indirectly, from rights of the transferee under the arrangement, (d) for the recovery by the person responsible for the pension arrangement (whether by deduction from any amount which that person is ordered to pay or otherwise) of costs incurred by that person in complying in the debtor's case with any requirement under section 36F(1) or in giving effect to the order. (3) In subsection (2), references to adjusting the liabilities of a pension arrangement in respect of a person include (in particular) reducing the amount of any benefit or future benefit to which that person is entitled under the arrangement. (4) The maximum amount which the person responsible for an arrangement may be required to pay by a recovery order is the smallest of-- (a) so much of the appropriate amount as, in accordance with section 36D of this Act, is recoverable, (b) so much (if any) of the amount of the unfair contributions (within the meaning given by section 36D(6)) as is not recoverable by way of an order under section 36A of this Act containing provision such as is mentioned in section 36B(1)(a), and (c) the value of the debtor's rights under the arrangement acquired by the transferee as a consequence of the transfer of the appropriate amount. (5) A recovery order which requires the person responsible for an arrangement to pay an amount ("the restoration amount") to the permanent trustee must provide for the liabilities of the arrangement to be correspondingly reduced. (6) For the purposes of subsection (5), liabilities are correspondingly reduced if the difference between-- (a) the amount of the liabilities immediately before the reduction, and (b) the amount of the liabilities immediately after the reduction, is equal to the restoration amount. (7) A recovery order in respect of an arrangement-- (a) shall be binding on the person responsible for the arrangement, and (b) overrides provisions of the arrangement to the extent that they conflict with the provisions of the order. 36F Recovery orders: supplementary(1) The person responsible for a pension arrangement under which the transferee has, at any time, acquired rights by virtue of the transfer of the appropriate amount shall, on the permanent trustee making a written request, provide the trustee with such information about the arrangement and the rights under it of the transferor and transferee as the permanent trustee may reasonably require for, or in connection with, the making of an application for a recovery order. (2) Nothing in-- (a) any provision of section 159 of the [1993 c. 48.] Pension Schemes Act 1993 or section 91 of the [1995 c. 26.] Pensions Act 1995 (which prevent assignation and the making of orders which restrain a person from receiving anything which he is prevented from assigning), (b) any provision of any enactment (whether passed or made before or after the passing of the Welfare Reform and Pensions Act 1999) corresponding to any of the provisions mentioned in paragraph (a), or (c) any provision of the arrangement in question corresponding to any of those provisions, applies to a court exercising its power to make a recovery order. (3) Regulations may, for the purposes of the recovery provisions, make provision about the calculation and verification of-- (a) any such value as is mentioned in section 36E(4)(c); (b) any such amounts as are mentioned in section 36E(6)(a) and (b). (4) The power conferred by subsection (3) includes power to provide for calculation or verification-- (a) in such manner as may, in the particular case, be approved by a prescribed person; or (b) in accordance with guidance-- (i) from time to time prepared by a prescribed person, and (ii) approved by the Secretary of State. (5) References in the recovery provisions to the person responsible for a pension arrangement are to-- (a) the trustees, managers or provider of the arrangement, or (b) the person having functions in relation to the arrangement corresponding to those of a trustee, manager or provider. (6) In this section--
(7) Regulations under the recovery provisions may-- (a) make different provision for different cases; (b) contain such incidental, supplemental and transitional provisions as appear to the Secretary of State necessary or expedient. (8) Regulations under the recovery provisions shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. " Insolvency Act 1986 (c. 45)70 The Insolvency Act 1986 is amended as follows. 71 After section 342C there is inserted-- " 342D Recovery of excessive contributions in pension-sharing cases(1) For the purposes of sections 339, 341 and 342, a pension-sharing transaction shall be taken-- (a) to be a transaction, entered into by the transferor with the transferee, by which the appropriate amount is transferred by the transferor to the transferee; and (b) to be capable of being a transaction entered into at an undervalue only so far as it is a transfer of so much of the appropriate amount as is recoverable. (2) For the purposes of sections 340 to 342, a pension-sharing transaction shall be taken-- (a) to be something (namely a transfer of the appropriate amount to the transferee) done by the transferor; and (b) to be capable of being a preference given to the transferee only so far as it is a transfer of so much of the appropriate amount as is recoverable. (3) If on an application under section 339 or 340 any question arises as to whether, or the extent to which, the appropriate amount in the case of a pension-sharing transaction is recoverable, the question shall be determined in accordance with subsections (4) to (8). (4) The court shall first determine the extent (if any) to which the transferor's rights under the shared arrangement at the time of the transaction appear to have been (whether directly or indirectly) the fruits of contributions ("personal contributions")-- (a) which the transferor has at any time made on his own behalf, or (b) which have at any time been made on the transferor's behalf, to the shared arrangement or any other pension arrangement. (5) Where it appears that those rights were to any extent the fruits of personal contributions, the court shall then determine the extent (if any) to which those rights appear to have been the fruits of personal contributions whose making has unfairly prejudiced the transferor's creditors ("the unfair contributions"). (6) If it appears to the court that the extent to which those rights were the fruits of the unfair contributions is such that the transfer of the appropriate amount could have been made out of rights under the shared arrangement which were not the fruits of the unfair contributions, then the appropriate amount is not recoverable. (7) If it appears to the court that the transfer could not have been wholly so made, then the appropriate amount is recoverable to the extent to which it appears to the court that the transfer could not have been so made. (8) In making the determination mentioned in subsection (5) the court shall consider in particular-- (a) whether any of the personal contributions were made for the purpose of putting assets beyond the reach of the transferor's creditors or any of them, and (b) whether the total amount of any personal contributions represented, at the time the pension-sharing transaction was made, by rights under pension arrangements is an amount which is excessive in view of the transferor's circumstances when those contributions were made. (9) In this section and sections 342E and 342F--
342E Orders under section 339 or 340 in respect of pension-sharing transactions(1) This section and section 342F apply if the court is making an order under section 339 or 340 in a case where-- (a) the transaction or preference is, or is any part of, a pension-sharing transaction, and Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 | P.15 | P.16 -- Back --
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