AP V TP (Pension Enforcement) [2025] EWFC 190 (B)
Stowe Family Law Senior Associate Natalie Nero and Solicitor Charlotte Kirkby instructed Barrister Sophie Kay of Coram Chambers in a Pension Enforcement case, representing the Applicant Husband (H).
Background to the case
The parties married in March 2015 and separated in February 2020. They had a financial consent order in place, agreed in April 2023, which provided for the sale of the family home with joint conduct. The net sale proceeds were divided 53% in favour of W with H receiving 47% share. The consent order also provided for a 48.94% pension sharing order (PSO) in respect of H’s Aviva pension.
The implementation of the consent order, however, faced significant delays due to the non-engagement of W. Shortly after the signing of the order, W dis-instructed her solicitors. The sale of the family home proved to be very difficult. W was residing in the property, but apparently left it in September 2023. There was no movement towards selling, and multiple applications were made concerning the sale due to W’s non-cooperation. H was awarded sole conduct of the sale as well as a costs order against W to reimburse work carried out on the property and the costs of the applications.
The primary focus of the application in this case was the pension sharing order. Shortly after the financial consent order was signed, W dis-instructed her solicitors, and was uncooperative in implementing the PSO, which prevented H from retiring. Letters were sent from H’s solicitors and Aviva to request W’s completion of the implementation forms; however these were not complied with.
In July 2023, H applied for an order requiring the implementation of the PSO, which was then made in September 2023, stating that the W should complete and return the forms no later than 5th October. In November, W claimed she had been in contact with Aviva to implement the PSO but this did not materialise, and a further application was made by H in June 2024 to vary the PSO to nil in light of W’s lack of cooperation.
Over the following months, letters were repeatedly sent to W setting out the information and actions required of her. Aviva also spoke to W explaining the process. No sharing was ever implemented.
The Hearing
A hearing was held in March 2025 before HHJ Farquhar and the judgment handed down in June 2025.
The hearing was held in response to a final application to the court from H requesting W implemented the PSO. By December 2024 this had still not been actioned. The Judge was primarily concerned with what order to make considering the PSO, ordered by consent in April 2023, had not been implemented due to the Respondent’s lack of engagement. H applied for the order to be set aside on the basis that it would be inequitable not to do so.
The Wife, the Respondent, did not attend the hearing, nor was she represented.
The Judge had to examine whether the Respondent had been sufficiently served with the proceedings in order for a variation to be made to the PSO. HHJ Farquhar concluded that she had been, stating that “In short, I am entirely satisfied that the Respondent has received notice of all the applications and hearings in this case.”
Options for varying the PSO
Three options were available:
- Vary the PSO by reducing the PSO to 5%, under the Matrimonial Causes Act 1973 s.31(2)(g) – this was eventually found to be untenable as a Final Order (or the Decree Absolute in this case) had been pronounced and thus there was no jurisdiction to vary the order.
- Set aside the PSO – according to Thwaite v Thwaite [1981] where an order is still executory the court may refuse to enforce an order if it would be ‘inequitable’ to do so.
- Vary the order to a pension attachment order – the Judge expressed that this would not be an option to the court due to the fundamental basis of their original consent order being a clean break
Judgment
HHJ Farquhar ordered that the PSO be set aside, although W was granted 28 days to comply with implementation before this was enacted. As this did not happen, the PSO was set aside.
In concluding that the best, and only option, was to set aside the PSO, the Judge explained that there had been a significant enough change in circumstances, and that it would have been inequitable to not vary the order. This was due to the original order having initially been a consent order, made at a time where both parties were represented and cooperative, in ‘stark contrast to the total non-engagement of the Respondent’.
Not only was H’s application successful, he also was awarded a cost order of £20,000 further to the cost order made to reimburse him for work carried out on the family home, and the costs of his applications earlier in proceedings.
The costs were to be paid to H from W’s share of the net sale proceeds from the family home, if not paid before.
