Goyal v Goyal [2016] EWFC 50

4 November 2016

Pension sharing order where the pension is outside of this jurisdiction.

Facts

• The Court of Appeal had previously determined that it was impermissible for the court to make a mandatory injunction pursuant to s.37 Senior Courts Act 1981 requiring a party to transfer all of their interest in an overseas annuity to another party (Goyal v Goyal [2016] EWCA Civ 792). The trial judge had believed that a pension sharing order could not be made against a pension arrangement held outside of the jurisdiction.

• The matter came before Mostyn J to consider whether such a pension sharing order could in fact be made

• The husband argued that even if the fund were beneficially owned by him, the wife’s claim for a pension sharing order should be dismissed for two reasons:

1) an order for pension sharing under s.24B of the Matrimonial Causes Act 1973 (‘MCA’) cannot be made in respect of overseas pensions; and/or

2) the wife had adduced no evidence that such an order, were it to be made, would be enforced by the courts in India.

Held

• Mostyn J held that a pension sharing order under s.24B of the MCA was not available in respect of any pension arrangement outside of this jurisdiction [29]. The presumption against the extra-territorial effect of the statute is an inescapable reading of the legislation as a whole and is reinforced by the procedural rules applicable to pension sharing [26].

• He highlighted an alternative method to achieve the same result: a consent order which incorporates an agreement, backed by an undertaking, to obtain an order in a foreign jurisdiction to split a pension in that jurisdiction [30]. The court must be satisfied that the foreign pension provider will give effect to the agreement [30].

• He further found that the wife had failed to provide clear evidence that a pension sharing order would be implemented in India [37]. It is well established that this is required in applications for property adjustment orders in respect of property sited overseas [34]. For this reason too, the wife’s claim for relief failed [39].