England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/11/2016

Mr Justice Mostyn:

Background
1. The background to this case is well known to the parties. It has been going on for far too long and so far as I can tell there is virtually no money left. A short background summary of the issues in hand can be found by the uninformed reader in the decision of the Court of Appeal dated 29 July 2016 ([2016] EWCA Civ 792), available on Bailii.
2. Further background can be found in a permission judgment given by Kitchen LJ on 27 February 2014 ([2014] EWCA Civ 523), also on Bailii, in which the full names of the parties are given. Therefore, there is no reason to accede to Mr Turner QC's request that the forenames (but not the surnames) of the parties should be obscured.
3. The decision of the Court of Appeal concerned an Indian pension fund - an annuity - established by the husband in September 2014: see paragraph 9 of the judgment of McFarlane LJ.
4. The Court of Appeal rightly set aside the order of Judge Brasse dated 6 January 2016. That was an impermissible freestanding injunctive order requiring the husband to transfer to the wife his interest in the Indian pension fund in circumstances where he had earlier in October 2015 awarded the wife a lump sum worth about £19,000 and dismissed all her remaining capital claims including her claims for property adjustment. As I will explain, it would have been open to the Court of Appeal to have reframed the order of Judge Brasse to position it within the powers available to the court so that it achieved much the same effect; but it did not do so. Instead it set aside the entirety of the offending order, including the provisions which made declarations as to the beneficial ownership of the Indian pension fund; and ordered that the wife's claims for a pension sharing order should be "reheard".
5. Judge Brasse found that the Indian pension fund belonged to the husband and dismissed his case that he had transferred all his interest in it to a Mr Deshmukh. He made strong findings of dishonesty against the husband. McFarlane LJ did not in his judgment question those findings, and indeed relied on them. He stated however at paragraph 15 that "the focus of this appeal is not upon the judge's findings of fact but upon the order that he made in the light of those findings." In paragraph 47 he held that paragraphs 1 and 2 of the order should be set aside - and those only concerned the injunction order. However, as I have already stated, the actual order of the Court of Appeal sets aside not merely the illegitimate free-standing injunction orders (i.e. paragraphs 1 and 2), but the order "in its entirety" made by Judge Brasse, and this included the key declarations as to the beneficial ownership of the fund. Therefore, it seems to me that, although this was probably unintended by the Court of Appeal, the question of the ownership of the fund is at large and needs to be re-determined, although in such determination the findings of Judge Brasse are naturally admissible and influential, if not decisive.
6. The time allocated for the hearing before me has not been sufficient to rehear the beneficial ownership question and in any event Mr Deshmukh has not been served with the paperwork concerning this issue. Nor has there been time to deal with the cross-applications to vary the order for spousal maintenance made earlier by Judge Brasse on 9 October 2015. They will be determined by me on a later date, although I will have something to say about the wife's application (which I deemed to have been made on 9 August 2016) later in this judgment.
7. This judgment is principally concerned with Mr Turner's argument that even if the fund is beneficially owned by the husband the wife's claim for a pension sharing order should nevertheless be dismissed in limine for two reasons:

i) An order for pension sharing under section 24B Matrimonial Causes Act 1973 cannot be made in respect of an overseas pension; and/or

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

II
Can an order under section 24B of the Matrimonial Causes Act 1973 be made in respect of an overseas pension?
8. Mr Turner QC's submission is laden with irony. Judge Brasse held in paragraph 29 of his judgment of 6 January 2016 that "I am unable to make a pension sharing order or a pension attachment order because the HDFC pension is in fact placed in India". In the light of this the judge made his free-standing injunction order (he could not have made a property adjustment order in respect of the fund, either by way of transfer or variation of settlement, as he had dismissed those claims on 9 October 2015). In the Court of Appeal Mr Turner QC suggested, admittedly tentatively, that this finding was wrong and that there may well have been power, subject to his second point, to make an order under section 24B in respect of the Indian pension. Therefore, that was the route that the judge should have followed rather than his free-wheeling adoption of the injunction powers of the court.
9. Why did Mr Turner QC accept that there was, at least in principle, power to make a pension sharing order in respect of a foreign pension? Because the notes on page 1158 of the Family Court Practice 2016 say so. They state:

"The court is able to make a pension sharing order against a foreign pension. Whether or not it will exercise its jurisdiction to do so will depend upon the reaction of the pension scheme when served with the application (Pension Schemes (Application of UK Provisions to Relevant Non-UK Schemes) Regulations 2006, SI 2006/207, as amended)."

10. Further, it is clear from paragraphs 29 – 32 of the judgment of McFarlane LJ that Mr Turner QC undertook a limited statutory analysis which he suggested supported the proposition that a foreign pension was within the reach of section 24B.
11. Did the Court of Appeal accept this position? It would seem so. In paragraph 39 McFarlane LJ stated in an obiter dictum (emphasis added):

"It is therefore plain that if the judge had understood that he could make a pension sharing order under the MCA l973 with respect to the annuity plan based in India he would have done so. At the time of his decision, however, he understood that the fact that the policy was based outside the jurisdiction of England and Wales placed it outside of the reach of the English Family Court. It is now common ground between the parties, and accepted by this court, that, in terms of the overall principles, the judge was in error in this regard. Although, as Mr Turner submits, there would be a need to consider, possibly with the assistance of expert evidence, whether the terms of the policy prevented transfer, what the reaction of the financial institution holding the policy was and whether a pension sharing order with respect to that policy by the English court would be enforceable under the law of India, those are specific matters of detail relating to this policy and, because of the erroneous understanding of the judge on the issue of international jurisdiction, the court simply did not engage with those lower level details at the hearing."

12. Therefore, the Court of Appeal ordered that the wife's pension sharing application should be reheard, and the case has been allocated to me.
13. Now, Mr Turner QC argues that in fact Judge Brasse was right all along and there is in fact no power to make a section 24B order in respect of a foreign pension. He says that the notes in the Family Court Practice are wrong and the statutory instrument referred to has nothing to do with the sharing of a foreign pension (it is concerned with the tax treatment of payments received under such pensions). One might think that Mr Turner QC should be stuck with his concession, but it is trite law that the parties cannot confer a non-existent jurisdiction on the court by agreement.
14. As the matter seemed to me to be of some importance to the professions I gave permission for the FLBA and Resolution to file written submissions. I have received helpful notes from Philip Marshall QC on behalf of the FLBA and from David Salter (an acknowledged expert in this field) on behalf of Resolution.
III
The presumption against extra-territorial effect of a statute
15. In the excellent book Pensions on Divorce (Second Edition 2013, Sweet and Maxwell) it is stated at paragraph 6-004 that:

"Once pension rights have been exported then ordinarily the United Kingdom system of pension intervention on divorce would give way to that country to which the rights had been exported."

In contrast (at least to some extent), paragraph 1654 of Butterworths Family Law Service (Binder 4), which was in fact written by David Salter, states:

"The definition of a 'pension arrangement' is sufficiently wide to enable a pension sharing order to be made against an overseas pension. Certain arrangements are disqualified as the destination for a pension credit. However, the general scheme of WRPA is that an overseas arrangement within the meaning of the Contracting-Out (Transfer and Transfer Payments) Regulations 1996 will qualify as a destination arrangement. In any event, the court will not exercise its discretion to make a pension sharing order relating to an overseas pension without being satisfied that the overseas pension arrangement will cooperate.

It is therefore important always to obtain written confirmation from the overseas pension arrangement of a willingness to implement the English pension sharing order. It should be noted that Scottish pension providers will usually implement an English pension sharing order. In certain circumstances (e.g. in the USA), it may be possible for a pension sharing order made in England or Wales to contain a recital that it should be registered in the USA for implementation purposes by means of a Qualified Domestic Relations Order (QDRO) or to give an undertaking to similar effect."

16. Both of these texts reflect, to a greater or lesser extent, the basic rule of statutory interpretation, as stated in Bennion on Statutory Interpretation, 6^th edition, LexisNexis 2013 at rule 102, that:

"Although an enactment may be expressed in general terms, the area for which it is law (known as its extent) must exclude territories over which Parliament lacks jurisdiction."

The rule is explained thus:

"For reasons of comity, Parliament seeks to avoid any impression that it is purporting to intrude into the area of jurisdiction of some other sovereign power. However, an enactment may operate in a foreign country by virtue of a provision of the law of that country which applies the enactment. International conventions provide for this to be done."

Rule 130 further provides that:

"Unless the contrary intention appears, and subject to any relevant rules of private international law, an enactment is taken not to apply to foreigners and foreign matters outside the territory to which it extends."

The commentary on that states:

"If a legislature seeks to go beyond the basic function of government and legislate for foreigners outside its territory it is likely to displease other nations whose function it is usurping."

The footnotes to the rules and commentary cite abundant authority which plainly justifies the propositions. I observe, as a matter of interest, that in the momentous Brexit decision handed down by the Divisional Court yesterday (Regina (on the application of Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) passing reference was made to the presumption against extra-territoriality at paragraph 83.

IV
Does the presumption apply to an application under section 24B in respect of an overseas pension?
17. It is true that it has been accepted for a very long time that orders for property adjustment can be made in respect of a foreign property or nuptial settlement trust provided that there is clear evidence that such an order would likely be enforced by the foreign court (see, for example, Jackson's Matrimonial Finance and Taxation (Ninth Edition, 2012, LexisNexis) at 7.57 – 7.58 and the cases there cited). I discuss this below. The question is whether a pension sharing order under section 24B falls into this category. Mr Turner QC now argues that irrespective of whether the Indian court might enforce such an order the terms of our domestic legislation simply cannot be construed to apply to any foreign pension. Mr Salter agrees that the reach of the legislation cannot be construed to cover a pension that originated in an overseas jurisdiction but he argues, cautiously, that it might extend to a pension which is exported overseas as a "qualifying recognised overseas pension scheme" (QROPS). Under section 150(8) of the Finance Act 2004 a recognised overseas pension scheme is an overseas pension scheme that meets the requirements prescribed under the Pension Schemes (Categories of Country and Requirements for Overseas Pension Schemes and Recognised Overseas Pension Schemes) Regulations 2006 (SI 2006 No. 206). One of the countries in which such a scheme may be established is India.
18. In his skeleton argument before me, which he has supplemented with a further lengthy note, Mr Turner QC has travelled an extensive statutory journey which I now set out.
19. As stated, the power to make a pension sharing order is to be found in section 24B of the Matrimonial Causes Act 1973. Section 21A(1) of that Act limits a pension-sharing order to "shareable rights under a specified pension arrangement" or "shareable state scheme rights". The second of these is not relevant here, but Mr Turner QC is right to note that there can be no question of the court making an order under section 24B in relation to a foreign state pension. Section 21A(2) of the 1973 Act provides that for the purposes of sub-section 21A(1):

"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."

20. So, we travel to Chapter I of Part IV of the Welfare Reform and Pensions Act 1999. Section 27(1) of that Act provides that that pension sharing is available "in relation to a person's shareable rights under any pension arrangement other than an excepted public service pension scheme" (my emphasis). Section 27(2) provides that "a person's shareable rights under a pension arrangement are any rights of his under the arrangement, other than rights of a description specified by regulations made by the Secretary of State".
21. Section 46(1) of the 1999 Act provides certain the following definitions (which are also to be found in section 25D(3) of the 1973 Act and in rule 9.3 of the Family Procedure Rules 2010). These provide (emphasis added):

"occupational pension scheme" has the meaning given by section 1 of the Pension Schemes Act 1993;

"pension arrangement" means—

(a) an occupational pension scheme,

(b) a personal pension scheme,

(c) a retirement annuity contract,

(d) an annuity or insurance policy purchased, or transferred, for the purpose of giving effect to rights under an occupational pension scheme or a personal pension scheme, and

(e) an annuity purchased, or entered into, for the purpose of discharging liability in respect of a pension credit under section 29(1)(b) of the Welfare Reform and Pensions Act 1999 or under corresponding Northern Ireland legislation;

"personal pension scheme" has the meaning given by section 1 of the Pension Schemes Act 1993;

"retirement annuity contract" means a contract or scheme approved under Chapter III of Part XIV of the Income and Corporation Taxes Act 1988;

22. Therefore, if the pension in question is a retirement annuity contract then it must be one approved under Chapter III of Part XIV of the Income and Corporation Taxes Act 1988, and these are confined to domestic arrangements. If it is (or was) an occupational pension scheme or a personal pension scheme, then you must travel to section 1 of the Pension Schemes Act 1993. This provides:

"occupational pension scheme" means a pension scheme–

(a) that –

(i) for the purpose of providing benefits to, or in respect of, people with service in employments of a description, or

(ii) for that purpose and also for the purpose of providing benefits to, or in respect of, other people,

is established by, or by persons who include, a person to whom subsection (2) applies when the scheme is established or (as the case may be) to whom that subsection would have applied when the scheme was established had that subsection then been in force, and

(b) that has its main administration in the United Kingdom or outside the EEA states,

or a pension scheme that is prescribed or is of a prescribed description;

"personal pension scheme" means a pension scheme that–

(a) is not an occupational pension scheme, and

(b) is established by a person within section 154(1) of the Finance Act 2004.

23. Section 154(1) of the Finance Act 2004 provides that:

Persons by whom registered pension scheme may be established

154.-(1) An application to register a pension scheme may be made only if the pension scheme–

(a) is an occupational pension scheme, or

(b) has been established by a person with permission under FISMA 2000 to establish in the United Kingdom a personal pension scheme or a stakeholder pension scheme.

(2) But subsection (1) does not apply to a public service pension scheme.

(2A) Subsection (1) is to be construed in accordance with section 22 of FISMA 2000, any relevant order under that section and Schedule 2 to that Act.

...

(4) The Treasury may by order amend this section.

24. Mr Turner QC argues that these provisions plainly confine pension sharing to domestic arrangements. Mr Salter argues that the definition in section 46(1)(d) of the 1999 Act is literally wide enough to catch a QROPS provided that the QROPS replaced a personal pension scheme or occupational pension scheme which satisfy the criteria set out above. Mr Salter agrees that this QROPS could not fall within any other definition in section 46(1) of the 1999 Act.
25. Mr Marshall QC takes the literal interpretation a stage further. He says that there is nothing in the plain words of section 46(1)(d) that confines them to an exported UK pension scheme, i.e. a QROPS. He accepts that the definition of a "personal pension scheme" in section 1 of the Pensions Schemes Act 1993 has a territorial limitation but argues that there is actually no such limitation in the definition of an occupational pension scheme. So, literally, it extends to any such scheme whether it was originated overseas, or whether it originated here and was exported. He is frank enough to accept that such an interpretation would come as a surprise to most practitioners and other professionals in the field.
26. I think that both Mr Salter and Mr Marshall QC are right in a literal sense about section 46(1)(d) but that mere literal meaning does not displace, in my judgment, the presumption against the extra-territorial effect of this statute (even if the pass seems to have been sold in relation to property adjustment orders). The application of the presumption to the powers under section 24B seems to me to be an inescapable reading of the legislation as a whole and is reinforced by the procedural rules applicable to pension sharing. In my judgment these can only work in the context of the sharing of domestic pensions. The rules were devised in a collaboration between government officials, family law professionals and the representatives of the domestic pensions industry.
27. The procedure is set out with clarity in paras 4-005 et seq of Pensions on Divorce. In summary:

i) In every case where there are pensions, whether or not pension sharing is specifically sought, the parties must provide certain basic information about the pensions which the pension providers are obliged to supply (FPR 9.30(1); Form E).

ii) If sharing is sought the application must be served on the providers (FPR 9.31).

iii) At the first appointment the court may direct the parties to file and serve a pension enquiry form (Form P) which the provider is obliged to complete (FPR 9.15(7)(c)).

iv) When making a pension sharing order the court must append a pension sharing annex (in Form P1) which gives detailed instructions to the provider as to how the sharing should be effected. This annex will specify the sharing percentage, as required by section 21A(1)(b) of the 1973 Act. The award cannot specify a liquidated sum – only a percentage (FPR 9.35).

28. It is clear to me that this procedure can only work in the context of a domestic pension.
29. For these reasons therefore I am satisfied that pension sharing pursuant to section 24B is not available in relation to any foreign pension.
V
Other routes to achieve the direct sharing of an overseas pension
30. This is not to say that other routes cannot be adopted to achieve direct sharing of a foreign pension. I have myself approved consent orders which incorporate an agreement, backed by undertakings, to obtain an order in the USA to split an American pension, and this technique is referred to in Butterworths Family Law Service. No doubt exactly the same technique can be used for other overseas pensions, provided that everyone is satisfied that the foreign pension provider will give effect to the deal. But this is a far cry from the court positively exercising dispositive powers over a foreign pension scheme.
31. A different route would be to follow the path approved in Brooks v Brooks [1996] AC 375 which was the harbinger of the statutory pension sharing regime. That approved the use of the variation of nuptial settlement power in section 24(1)(c) of the 1973 Act to split a pension. With the advent of the statutory regime in 1999 section 24(1)(c) was amended to prevent an application being made under it in respect of a pension arrangement "within the meaning of section 25D". That provision, referred to above, only applies, for the reasons I have stated, to a domestic pension. And so, at least in principle, and subject to what I write below, the power to vary would be available in relation to a foreign pension.
32. Mr Turner QC accepts that an order for a transfer of foreign property does not offend the presumption against extra-territorial effect as it is an in personam order against the respondent to transfer specified property to the applicant. It is not an order in rem. However, he questions whether the old cases, which state that, at least in principle, and subject to proof of likelihood of reciprocal enforcement, an order can be made varying a foreign nuptial settlement, in fact violate the presumption against extra-territorial effect. In none of those cases was the point considered. In such a case, he says, the relief has the hallmarks of an order in rem. Moreover, it imposes obligations on foreign third parties - the trustees of the overseas trust. These are respectable arguments which will need to be considered when such a case arises. The counter-argument is that it is a very necessary power in many cases, particularly where the overseas trust owns property sited in this jurisdiction. I examined this in my own decision of BJ v MJ (Financial Remedy: Overseas Trusts) [2011] EWHC 2708 (Fam) at [7], [20] – [21], and [23] but I recognise that I did not address the question of the presumption against extra-territoriality and whether an exception to it could be inferred.
33. But as I have stated, that power is not available here in any event as Judge Brasse dismissed the wife's claims for property adjustment on 9 October 2015. If it were available not only would the procedural requirements of FPR 9.13 need to be followed to the letter but the question of enforcement in the foreign jurisdiction would be of key importance. It is to that topic to which I now turn.
VI
Would a pension sharing order be implemented in India?
34. As I have stated above, it is well established that a property adjustment order can in principle be made in respect of property sited overseas provided there is clear evidence that such an order would be implemented in the overseas jurisdiction. In the absence of such evidence the order would represent an exorbitant act of extra-territoriality. It would also be futile. This territorial self-restraint reflects the rule of statutory interpretation referred to above. The leading case is Hamlin v Hamlin [1986] Fam 11, cited by the Court of Appeal in this case at paragraph 33.
35. In paragraph 33 McFarlane LJ stated:

"This is part of a wider point made on behalf of the husband to the effect that the court should not make orders which cannot be enforced (see Hamlin v Hamlin [1986] 1 FLR 61). It was, submits Mr Turner, incumbent upon the wife to adduce expert evidence as to the enforceability of the order she sought in India against this specific scheme."

And at paragraph 48:

"Further, because of the international element, it was, in Mr Turner's submission, essential for the wife's team to have filed expert evidence as to the enforceability of any pension sharing order with respect to this policy in India."

36. The wife cannot have been in any doubt that on the "rehearing" of her pension sharing claim it was incumbent on her to adduce evidence of Indian law that an order made under section 24B would likely be enforced by a court in India.
37. But she did not do so. Instead, she provided material which suggested that the order made by Judge Brasse on 6 January 2016 (which he had dubiously transmuted into High Court proceedings – see paragraph 19 of the judgment of McFarlane LJ) would be enforceable in India. However, that order had been set aside by the Court of Appeal as being wholly illegitimate. Her evidence was directed at the wrong order.
38. What she did not provide was any evidence that a pension sharing order (attaching the technical and complex pension sharing annex) would be likely to be enforced in India. The evidence that she did supply suggested that an order for the payment of a sum of money made by the High Court here would, under the Code of Civil Procedure 1908, be enforceable. That is not what a pension sharing order does. Indeed, in England and Wales (unlike, I believe, in Scotland) a pension sharing order cannot specify a sum of money but rather, as I have said above, only a percentage. It then goes on to direct how the pension credit should be created and given effect (by internal or external transfer, depending on the rules of the scheme). There is no evidence before me which begins to confirm that this unique order would be reciprocally enforced in India.
39. So, for this reason also, the wife's claim for a pension sharing order fails in limine.
VII
Could the same result have been achieved by permissible means?
40. It is a great pity that Judge Brasse followed the path that he did as it has led to this extensive and unnecessary further litigation both in the Court of Appeal and before me. He intended the wife to have all the benefit of the annuity. There was a very simple solution he could have adopted which was squarely within the powers of the court and which would have had much the same effect.
41. The Indian pension is an annuity. It pays around £6,000 per annum. When the husband dies (or if he befalls a critical terminal illness) the then value of the original purchase price of £87,000 will be returned to his estate. That will, I expect, be in many years' time, so the return of the purchase price (at par) is scarcely relevant. The annuity contract is in the husband's name and the payments are made to an Indian bank account also in his name (although he says that it is controlled by Mr Deshmukh). As far as the insurers are concerned the owner of the rights under the contract is the husband alone. As far as they are concerned there is not a single piece of documentary evidence that he has assigned his rights to Mr Deshmukh.
42. On 9 October 2015 Judge Brasse ordered the husband to pay periodical payments to the wife at the rate of £500 per month commencing on 1 March 2016. It would have been perfectly proper for him to have varied his order to provide that in addition to the monthly payments there should be a quarterly supplement in the full amount that the husband could take under the annuity contract. A periodical payments order in two parts is commonplace. Such orders are regularly made where the payer has a basic salary and a bonus (see, for example, the decision of King J in H v W [2013] EWHC 4105 (Fam)).
43. In his judgment at paragraph 46 McFarlane LJ stated:

"Miss Toch accepted that it was not open to the judge to make a further periodical payments order under MCA 1973, s 23 in the terms of paragraph 2 as there was already a periodical payments order in force following the October 2015 order."

I do not understand this. I asked Mr Turner QC if he could shed any light on it, but he could not. It may not have been possible in a strictly technical or drafting sense to have a second periodical payments order but it was certainly possible to have a periodical payments order structured in two parts.

44. It would further have been possible to have bolstered the annuity part of a varied periodical payments order by an injunction under section 37 of the Senior Courts Act 1981 requiring the husband to continue to receive the maximum amount of the annuity and to pay it to the wife. Such an order would have been in support of an existing legal right (i.e. the right to receive the annuity part of the periodical payments order). In Blight v Brewster [2012] 1 WLR 2841 the High Court held, following the Privy Council in Tasarruf Mevduati Sigorta Fonu v Merrill Lynch Bank and Trust Company (Cayman) Limited [2011] UKPC 17, that an order under section 37 could be made requiring the defendant to draw down the maximum lump sum available under his pension in order to satisfy a judgment obtained against him. The decision in Field v Field [2003] 1 FLR 376 to contrary effect was disapproved.
45. So here a bolstering injunction could be made, and Mr Turner QC accepted this. I might add that such an order could equally be made under section 37 of the 1981 Act in order to aid satisfaction of the lump sum of some £19,000 awarded in favour of the wife by Judge Brasse on 9 October 2015, which the husband has failed to pay.
46. I cannot go down this route at this stage as the question of the ownership of the rights under the annuity contract has yet to be determined by me in circumstances where the Court of Appeal has inadvertently set aside the formal declarations of ownership made by Judge Brasse.
47. If I do reach a similar conclusion about ownership of the annuity contract as Judge Brasse I will have to consider de novo whether as a matter of fairness the wife should receive all of the benefits arising under the contract.
48. All that is for another day. The next hearing will determine:

i) The question of ownership of the rights under the annuity contract. For this purpose, Mr Deshmukh must be served with the necessary paperwork.

ii) The wife's deemed application for a variation of the periodical payments order to provide that thereby she receives all the benefits arising under the annuity contract.

iii) The husband's application to vary the existing periodical payments order which he issued in February 2016 shortly before it was due to take effect.

I have given directions for the filing of evidence in relation to these issues.