family law association of ireland pensions & family law - problems and pitfalls paul kenny...
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Family Law Association of Ireland
Pensions & Family Law - Problems and Pitfalls
Paul KennyPensions Ombudsman
Pension Provisions of the Family Law Acts
designed to allow distribution of pension to “other spouse”
pensions last in line - other property first all forms of pension included -
occupational, AVCs, self-employed, buyout bonds, etc.
PAOs do not seem to be as common as value of assets implies
Are pensions traded off against other assets?
Do parties realise the real value of pensions?
If PAOs to be applied for…
PAOs will have to be applied for, for each scheme, and for each type of benefit
Therefore essential to be able to identify and understand what is there
Example of pension value
Public servant, salary €50,000 When 40 years completed, pension 25K,
gratuity 75k, Spouse 12.5k plus post retirement increases
Official value then (65), about €600k Open market annuity cost more like €800k
At age 45, has “earned” about half of that – value at 65 about 300k.
Actuarial value declared is c. €113k discounted at 5%, €93k at 6%
That’s not the full picture….
The transfer value is the present value if the asset is taken out of the scheme
If it’s left where it is, it benefits from future pay increases, promotion etc (though not future service)
Potential value may be enormous (If he became Sec. Gen., 50% of half his
pension is worth €1.24M)
Alternative Asset
Perhaps, a house? Assuming no mortgage:
Value in 2007, €600,000 Value today, €400,000 Value at 65?
But house is immediately disposable asset, pension is not
Types of pension arrangement covered by the Act
Occupational Pension Scheme per Pensions Act 1990
Retirement Annuity Contract (personal pension)
RAC under Trust Approved Policy (“buyout bond”) Any other scheme or arrangement
Designed to provide benefits on retirement, leaving, cessation of
employment for widow/er, dependants or other persons, on
death
Occupational Pension Scheme
Occupational Pension Schemes may be Statutory – set up by or pursuant to public statute, by Ministerial Order
If not statutory, must be constituted under irrevocable trusts
Retirement Annuity Contracts
Contract between member and provider (s.235, ITA 1967, s.784 TCA 1997)
Normally effected by self-employed Open to anyone in non-pensionable
employment Personal property of member
Unless effected under trust S. 235 (4) ITA 1967, s. 784(4) TCA 1997
Approved Policy (buyout bond)
Effected with a provider by trustees of Occupational Pension Scheme On leaving service Or as a result of winding-up Or by transfer resulting from a PAO
Contract is direct liability of provider to Member
Any other arrangement….
PRSA (personal Retirement Savings Account) Very like RAC, but never under trust Personal property of holder
Annuity, immediate or deferred Unfunded promise
Some things don’t look like pension schemes: e.g., Retained Fire Officers’ Gratuity scheme
Two types of Pension Scheme
DEFINED BENEFIT[DB] AND DEFINED CONTRIBUTION [DC]
defined benefit makes a promise of benefits, usually expressed as
fraction of final salary [also called "final salary" schemes]
cost not determined in advance defined contribution
makes no benefit promise, only contribution whatever that buys is the benefit cost known and fixed
DB or DC
Occupational schemes may be DB, DC or both
RACs are always DC PRSAs are always DC Additional Voluntary Contributions (AVCs)
may be DB (rare) or DC and may be made to main scheme or to
legally separate arrangement Buyout bonds DC with rare exceptions
Arrangements not defined in the Act
“Target” benefit: always DC “Hybrid” schemes –usually a combination of
DB and DC - may have to be treated for PAO purposes as two different schemes
This may also happen in DB scheme with DC AVC arrangement under the same trusts
NB: If any element of DB present, legally DB
Self-Administered Schemes
Self-administered so called to distinguish from traditional insured vehicles – means “directly invested”
“Small self-administered schemes” a special category Pensioneer trustee Now almost all one-member arrangements They are the only schemes allowed to borrow Watch net asset values, gearing/borrowing,
liquidity
The Public Sector
Although Public Service benefit patterns are broadly similar, lots of differences of detail between schemes: e.g., Local Government, Civil Service, Semi-States , Health service (3 main schemes); Defence Forces, Judiciary, etc etc.
All have separate schemes for Spouses’ and Children's benefits
Separate (Union-sponsored) schemes for AVCs may also exist
In the Public Service….
You may need up to six separate elements in a PAO
Main scheme: covers retirement pension for member and lump sum (gratuity at retirement or death): pension and retirement gratuity are retirement benefits
Death gratuity is contingent benefit
Public Service –cont’d
Spouses’/children’s scheme separate: Death-in-Service pensions contingent; Pensions separate for spouse/children Children’s pensions double on spouse death Non-marital children benefit Death-in-Retirement benefit is retirement
benefit If separate AVC scheme exists, benefits
are both retirement and contingent Careful: Some older schemes may have
non-standard rules
Information Required - General
Requirement to give particulars of property- including pension rights
General information on pensions: Scheme name or other identification Member name Date first covered Pensionable pay / calculation AVCs details Rights transferred into scheme
Information from the Trustees - DB
Calculation of each element of retirement benefit- as if leaving service
Method/s of calculation Date/s payable Provision for Increase? Actuarial value
Solvency caveat
Information from the Trustees - DC
Accumulated value of fund Date/s payable
Explanation of how fund translates to Retirement Benefit
Information from the Trustees – Contingent benefit
Calculation of amount of each element of DB Assuming death of member spouse Specify scheme rule or policy number
Method/s of calculation
Trustees
May make representations to the Court
Are entitled to expenses, costs incurred in complying with a PAO or a direction of the Court
Costs payable by parties 50/50 if no Order
Trustee may apply to Court to recover costs from benefits
Order served on Trustees
To be served by Registrar or Clerk of the Court.
Member record must be tagged by trustees to show existence of PAO
The need to record...
PAOs can be affected by later events…. death of the beneficiary death of dependant or cessation of
dependency death of the member spouse leaving service early retirement - ill-health or normal health transfer of benefits
Records must highlight that PAO exists, so that appropriate action is triggered
Disclosure requirements cover… Regulation 17 and Schedule G of Disclosure
Regulations SI 301 of 2006* Request for Information on Designated Benefit Receipt of a PAO Defined Benefit Scheme Defined Contribution Scheme (or section) Retirement – early, normal, late Death before/after: member, spouse, child
dependant Termination of relevant employment Notification to the Court
* Similar requirements for Trust RACs SI 182 of 2007
The Prudent Trustee
Does not accept PAO at face value Tests for feasibility of implementation Cost of review –can be expensive Not paid from scheme funds
Queries to us on PAOs more common: 2003-07: 11 in total;2008: 12; 2009:16; 2010 to August: 14
Most problems have yet to surface!!
Problems with PAOs
Sometimes drafted on back of envelope No resemblance to what the Notice of
Motion asked for Specified percentage and period not clear When an order is not an order… “Sorted if he dies, before or after
retirement” (but not if he lives to collect his pension)
Was the PAO actually served?
More problems…
Public Service “old” schemes – second spouse not covered if remarriage after retirement
Divorce Decree referred to pension - not a PAO; real PAO referred to S&C scheme – trustees confused
Order referred to Retirement Benefits – intention was only death-in-retirement – ex parte application, new PAO
Affidavit of Means - “Not in receipt of…”
And More
Non-member spouse may find it hard to get information Insurer/broker/client relationships Client (employer/trustee may be member
spouse) Irish member of UK scheme – PAO not
enforceable under UK statutory regime Transfer/clean break if scheme
insolvent?
And finally….
The Acts were not drafted by pensions people Unforeseen consequences, e.g., death
of non-member spouse Public service issues
Office of the Pensions Ombudsman
36 Upper Mount St, Dublin 2 Phone 01 647 1653 Fax 01 676 9577 E-mail info@pensionsombudsman.ie Web www.pensionsombudsman.ie
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