APPENDIX 20
Memorandum submitted by the UK College
of Family Mediators (PS 44)
CHAPTER 1
Paragraph 2
Mediators will have to be able to inform the
mediating couple of the proposed and actual changes in the law,
without giving advice.
Paragraph 6
Note, no mediation organisations are represented
on the Consultation Panel. Is it too late for the College to be
invited?
CHAPTER 2
Paragraph 1
Agreed, save that "earmarking" is
now available (see also paragraph 3).
Paragraph 11
The principle that divorcing couples should
be able to deal with pension rights in a way that provides for
the "fairest" overall financial settlement is one to
be approved and fits with one of the objectives of mediation,
which is for the couple to obtain an understanding which they
each think is fair under circumstances of the case, even if not
directly a reflection of how the Courts might decide on the same
issue.
Paragraph 14
UK College endorses the principle of pension
sharing not to be compulsory. A fundamental characteristic of
mediation is that it is a voluntary process and that the couple
are not under legal obligation to divide any given asset against
their own wishes or sense of fairness.
Paragraph 16
Pension schemes are complex and have varying
territorial procedures. They are obvious dangers in over simplifying
the system of pension sharing and that might in itself cause misunderstandings
within the mediation process.
Paragraph 18
It is understandable that pension sharing should
be based upon pensions, family and tax law framework at the point
of introduction. At present, the College does not believe that
many family mediators will have an understanding of the potential
tax law consequences of any particular proposals that might be
acceptable to both parties in the mediation.
Mediators may have to consider introducing into
the process a "pension expert" who can provide information
to the couple to help them in reaching appropriate decisions.
Paragraph 21
The College notes and approves the decision
not to apply the new legislation retrospectively.
CHAPTER 3
Paragraph 4
Agreed, save that within the "finance and
property" information provided at the information meeting,
reference will have to be made where appropriate to pension schemes,
particularly if, as anticipated, the legislation is new and couples
will have heard of it.
Paragraph 8
Currently mediators tend to suggest to the couples
going through the process that it is not necessarily conducive
to the successful outcome of mediation to put in place procedures,
serve documents, give notice, etc., within the context of the
proceedings. In other words, generally divorce and ancillary proceedings
are put "on ice". It would seem, however, that it may
be necessary to advise on the pension scheme on a possible future
pension sharing arrangement. To question this might create problems
within the mediation.
Paragraph 15
Although mediating couples are encouraged to
have an "agreement" ratified and become the subject
of independent legal advice, there is no compulsion on them to
have their understanding "converted" into a Court Order.
What are the cost implications of requiring an agreement to be
certified by the court? What documentation would the court be
required to see? Will, for example, a completed and signed Memorandum
of Understanding suffice? Will the Court need to see the Open
Summary of Financial information before giving that certificate?
Paragraph 16
There are occasions when married couples mediate
their financial arrangements but not necessarily within the context
of divorce proceedings. Is pension sharing an option where there
will be no divorce order, albeit a financial agreement? Mediators
will need to know this information in order to be able to provide
information during the mediation process.
Paragraph 18
Could a mediator provide the "required
documentation" and thereby impose on the pension scheme or
provider the need to implement the pension share?
CHAPTER 4
FMS to advise separately.
CHAPTER 5
Separate advice needed.
SUMMARY
1. The College supports the principle of pension
sharing.
2. The College agrees that clear and administratively
simple procedures need to be implemented but warns of the risks
of over simplification.
3. Mediators will need "top up" or
other specific training on the issue. Funding?
4. The College believes that as presently drawn
the legislation seems to require the couple to have an understanding
ratified by the Courts, and that is not presently a requirement.
The relationship between mediating couples and pension provider
needs to be analysed further.
October 1998
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