Family Law
Number 25 of 1990 /
Pensions Act, 1990
Part I Preliminary and General
Regulations generally
5.-(1) The Minister may make regulations-
(a) for any purpose in relation to which regulations are provided for by any of the provisions of this Act, and
(b) for prescribing any matter or thing referred to in this Act as prescribed or to be prescribed.
(2) Except in so far as this Act otherwise provides, any power conferred thereby to make regulationsmay be exercised-
(a) either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of case, and
(b) so as to make, as respects the cases in relation to which it is exercised-
(i) the full provision to which the power extends or any lesser provision (whether by way of exception or otherwise),
(ii) the same provision for all cases in relation to which the power is exercised or different provision for different cases or classes of case, or different provision as respects the same case or class of case for different purposes of this Act,
(iii) any such provision either unconditionally or subject to any specified condition.
[(2A) The power to make regulations under this section includes power to make provision by regulation to give effect to-
(a) any provision of the Treaties of the European Communities, or
(b) any Act adopted by an institution of the European Communities which regulates any of the matters to which this Act applies.]
(3) Without prejudice to any specific provision of this Act, any regulations may contain such incidental or supplementary provisions as may appear to the Minister to be expedient for the purpose of theregulations.
[(3A) Without prejudice to any specific provision of this Act, any regulations may provide-
(a) for any of the provisions of this Act, or any of those regulations, to apply to the different sections of a sectionalised scheme as though each section were a separate scheme for any or all of the purposes of this Act, and
(b) if provision as aforesaid is made in relation to a provision of this Act, that the provision so applied shall have effect subject to specified modifications, being modifications the making of which the Minister considers necessary or expedient in consequence of the application of the provision in that manner and which, in every case, conform to the purposes, principles and spirit of this Act.
(3B) For the avoidance of doubt, regulations referred to in subsection (3A) may provide for any or all of the provisions of this Act or any or all of those regulations, to apply both to the different sections of the scheme concerned as though each were a separate scheme and to the scheme as a whole.]
[(4)-
(a) The Minister may, with the consent of the Minister for Equality and Law Reform, makeregulations specifying guidelines for the purposes of section 12 and the reference insubsection (1) of the said section 12 to any relevant guidelines for the time being in force under [paragraph (c) or (cc) of section 10 (1)] shall be construed as a reference to any relevant guidelines specified as aforesaid and for the time being in force.
(b) Without prejudice to the generality of paragraph (a), guidelines specified by regulationsunder that paragraph may-
(i) make provision in relation to the manner in which a contingent benefit, a designated benefit, a residual benefit or a transfer amount payable under a scheme, the actuarial value referred to in subsection (10) of section 12 or the value and the amounts referred to in subsection (25) of section 12 should be calculated and, in particular, but without prejudice to the generality of the foregoing, provide that, in making such a calculation, regard should be had to one or more of the following:
(I) whether the scheme concerned is a defined contribution scheme or not,
(II) the amount of retirement benefit payable (or which, but for the making of the relevant order for the decree of judicial separation, would have been payable) under the scheme concerned to or in respect of the member spouse concerned,
(III) the period of reckonable service of the member spouse for the purposes of suchretirement benefit,
(IV) the period concerned and the percentage concerned specified in the order concerned under subsection (2) of section 12 pursuant to paragraphs (i) and (ii) respectively, of that subsection,
(V) the value, the actuarial value or the accumulated value, as may be appropriate, of the whole or the appropriate part of such retirement benefit as aforesaid,
(VI) whether, at the date of the making of the relevant order under subsection (2) ofsection 12, the member spouse was an active member of the scheme concerned or was being paid retirement benefit, or was entitled to any other benefit payment of which is deferred, under the scheme concerned,
(VII) the amount of contingent benefit payable (or which, but for the making of the relevant order for the decree of judicial separation, would have been payable) under the scheme concerned on the death of the member spouse concerned,
(VIII) the percentage concerned specified in the order concerned under subsection (3) of section 12,
(ii) specify the manner in which a transfer amount should be applied under section 12,
(iii) specify the manner and the circumstances in which a contingent benefit, a designated benefit, a residual benefit or a transfer amount should be paid or applied pursuant tosection 12 (including the period, and the manner of its ascertainment, during which such a payment should be made) and, in particular, but without prejudice to the generality of the foregoing, where-
(I) the member spouse concerned retires upon or before or after attaining normal pensionable age,
(II) the member spouse dies before payment of the designated benefit has commenced,
(III) the member spouse dies after payment of the designated benefit has commenced,
(IV) the member spouse ceases to be an active member of the scheme concerned,
(V) the person in whose favour the relevant order under subsection (2) of section 12is made dies before payment of the designated benefit has commenced,
(VI) the person in whose favour the order aforesaid is made dies after payment of thedesignated benefit has commenced,
(VII) the person in whose favour the said order is made ceases to be a dependent member of the family as defined in section 2 of the Family Law Act, 1995,
(VIII) in the circumstances specified in subsection (5) of section 12, a spouse makes an application under that subsection,
(IX) the trustees of the scheme concerned apply the transfer amount concerned under or in accordance with subsection (6) or (8) of section 12,
and
(iv) make such other provision as may be necessary or expedient for the purposes ofsection 12 and for enabling it to have full effect.
(c) In making regulations under paragraph (a), regard shall be had to any relevant principles, purposes or policies of this Act, the Income Tax Acts, the Family Law Act, 1995, any relevant current practices of the Revenue Commissioners in approving schemes, any relevant guidelines, guidance notes or codes of practice of the Board and any relevant guidelines of the Society of Actuaries in Ireland for the time being in force and the desirability of promoting equity and consistency in the treatment of individual cases, minimising any costs incurred under section 12 and conforming with good pensions practice.
(d) In this subsection-
“’accumulated value” means-
(i) the realisable value of the units, shares or securities at a particular date, or averaged over a particular period before that date in which, pursuant to the rules of the scheme, the contributions for retirement benefit paid by or in respect of a member spouse under the scheme are invested, or
(ii) the realisable value of the contributions for retirement benefit paid by or in respect of a member spouse under a defined contribution scheme, together with the notional rate of interest or other investment return prescribed under the rules of the scheme, or
(iii) the amount of the proceeds of any insurance policies in which, pursuant to the rules of the scheme, the contributions for retirement benefit paid by or in respect of a member spouse under the scheme are invested,
less, in each case, the amount of any of the expenses of the scheme that, pursuant to the rules thereof, fall to be discharged out of the said realisable value or proceeds;
“active member”, “actuarial value”, “contingent benefit”, “defined contribution scheme”, “designated benefit”, “retirement benefit”, “scheme” and “transfer amount” have the meanings assigned to them by section 12;
‘”residual benefit” means the amount of retirement benefit remaining in respect of the member spouse concerned after deduction therefrom of the relevant designated benefit or the amount of contingent benefit in respect of the member spouse concerned remaining after deduction therefrom of the amount of contingent benefit payable pursuant to an order under subsection (3) of section 12 or the amount of payment made under subsection (7) of section 12;
‘”section 12” means section 12 of the Family Law Act, 1995.]
[(5) The Minister may, after consultation with the Minister for Enterprise, Trade and Employment and with the consent of the Minister for Finance, make regulations prescribing any matter or thing in relation to a scheme[, trust RAC] or PRSA for the purpose of enabling any provision of the Protection of Employees (Part-Time Work) Act, [2001 or the Protection of Employees (Fixed-Term Work) Act 2003] to have full effect.]
Insertion of new Part VIIA into Pensions Act 1990
27. The Pensions Act 1990 is amended by the insertion after Part VII of the following new Part:
“Part VIIA
Matters relating to satisfaction by certain members or certain persons of certain requirements relating to age at marriage or civil partnership
Interpretation
81K. (1) In this Part—
‘Act of 2010’ means the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ;
‘Act of 2015’ means the Marriage Act 2015 ;
‘civil partnership registration’ has the meaning assigned to it by the Act of 2010;
‘member’ shall be construed in accordance with subsection (2) ;
‘retires’, in relation to a member, includes early retirement of a member under the defined benefit scheme concerned.
(2) In this Part references to ‘member’ includes, in addition to the meaning assigned to it by section 2, a member who has died and references to ‘member’ shall be construed accordingly.
(3) In this Part references to a day on which a member retires or has retired shall be construed as meaning the day on which a benefit under the defined benefit scheme concerned becomes payable to the member.
Satisfaction of certain requirements relating to marriage or civil partnership in certain circumstances
81L. (1) Where in a defined benefit scheme—
(a) that scheme provides certain benefits for the widow, widower, spouse or civil partner of the member on the death of the member (‘beneficiary’),
(b) that scheme fixes, as a condition for entitlement to benefits referred to in paragraph (a) under such scheme—
(i) the age by which the member shall have married or entered into a civil partnership with the beneficiary, or
(ii) that the member shall have married or entered into a civil partnership with the beneficiary on, or before, the day on which the member retires,
and
(c) a member of that scheme attained the age fixed for the satisfaction of the condition referred to in paragraph (b)(i) or, in the case of the condition referred to in paragraph (b)(ii), retired and—
(i) on or before the day on which the member attained that age or retired he or she was in a committed relationship with a person of the same sex, and
(ii) on the day on which the member attained that age or retired the member could not satisfy the condition referred to in paragraph (b)(i), or as the case may be, (b)(ii) as the member was unable—
(I) to marry the person referred to in subparagraph (i) or to have a marriage, referred to in section 12 of the Act of 2015, with that person recognised in the State by virtue of the Act of 2015 not having come into operation, or
(II) to enter into a civil partnership registration with the person referred to in subparagraph (i) or to have a relationship, referred to in section 5 of the Act of 2010, with that person recognised in the State as a civil partnership by virtue of the Act of 2010 not having come into operation,
that member is deemed, on the date on which this section comes into operation, to have satisfied the condition referred to in paragraph (b)(i) or (b)(ii) if—
(i) within 36 months of the coming into operation of the Act of 2010 the member entered into a civil partnership registration with the person referred to in paragraph (c)(i),
(ii) on or before the date on which this section comes into operation, a relationship referred to in section 5 of the Act of 2010 between the member and the person referred to in paragraph (c)(i) was recognised as a civil partnership in the State pursuant to an order made under section 5 of the Act of 2010,
(iii) within 36 months of the coming into operation of the Act of 2015, the member married the person referred to in paragraph (c)(i), or
(iv) within 36 months of the coming into operation of section 12 of the Act of 2015, a marriage between the member and the person referred to in paragraph (c)(i) was, in accordance with that section, recognised in the State.
(2) A member who, in accordance with subsection (1), is deemed to have satisfied the condition referred to in paragraph (b)(i) or (b)(ii) of subsection (1) shall be entitled to the benefits referred to in subsection (1)(a) if—
(a) the contributions that are required for the purpose of obtaining the entitlement to those benefits have been paid into the scheme, and
(b) where, in respect of the contributions referred to in paragraph (a), an amount is required, under section 81M, to be paid into the scheme, the amount has been paid into the scheme in accordance with that section.
(3) Information in respect of the relationship referred to in subparagraph (i) of paragraph (c) of subsection (1) shall be provided by the member or person referred to in that subparagraph and shall be attested as to the truth of that information by a statutory declaration made by that member or person.
(4) For the purposes of subsection (1)(c)(ii), references to a member being unable to enter into a marriage or civil partnership includes complying with any notice requirements pursuant to the Act of 2015 or under the Act of 2010.
(5) Where before the day on which this section comes into operation, a member who would have satisfied paragraph (i), (ii), (iii) or (iv) of subsection (1) has died, the benefits referred to in paragraph (a) of subsection (1) shall be calculated on and from the day on which this section comes into operation.
Contributions required for benefits referred to in section 81L(1)(a)
81M. (1) Where a person referred to in section 81L(1)(c)(i) applies to the trustees for the payment of the benefits referred to in section 81L(1)(a) and the trustees are not satisfied that the contributions, that are required to be paid into the scheme by the member for the purpose of that member obtaining entitlement to those benefits, have been paid, the trustees shall—
(a) calculate an amount, in respect of those contributions, to be paid into the scheme and the interest (if any) applied in respect of those contributions under subsection (4), and
(b) notify the person in writing of the required amount.
(2) Without prejudice to subsection (1), a member or, on the death of a member, a person referred to in section 81L(1)(c)(i) may, at any time, apply to the trustees of the scheme for a statement in writing as to whether all contributions required for obtaining entitlement to the benefits referred to in section 81L(1)(a) have been paid into the scheme and where some or all of those contributions—
(a) have not been paid, or
(b) were refunded to the member, or a personal representative of a member, whether before or after retirement or otherwise,
the amount to be paid in respect of those contributions, and the interest to be applied in respect of those contributions under subsection (4).
(3) A member or a person referred to in subsection (1) or (2) may, at any time following a notification referred to in subsection (1) or a statement in subsection (2), make a payment to the trustees of a scheme in respect of the contributions required for obtaining entitlement to the benefits referred to in section 81L(1)(a).
(4) For the purpose of calculating the amount to be paid into the scheme in order to obtain the entitlement to the benefits referred to in section 81L(1)(a), the trustees may apply a rate of interest in respect of the amount to be paid in respect of contributions that are required for obtaining those benefits where some or all of those contributions were—
(a) refunded to the member, or the personal representative of a member, and where the rate of interest is applied, it shall be applied from the date of the refund of those contributions to the date on which the calculation of the amount is made, or
(b) not paid by the member and where the rate of interest is applied, it shall be applied from the date they would have been paid to the date on which the calculation of the amount is made.
(5) The rate of interest to be applied by the trustees for the purpose of the calculation referred to in subsection (4) shall be the rate of interest specified in the rules of the scheme or an amount specified by an actuary for the scheme.
(6) When calculating the amount to be paid into the scheme in respect of the contributions required for obtaining entitlement to the benefits referred to in section 81L(1)(a), the trustees shall, in a notification under subsection (1) or a statement under subsection (2) —
(a) specify the rate of interest applied in the calculation of that amount, and
(b) where, having regard to the dates referred to in paragraphs (a) and (b) of subsection (4), a different rate of interest is applied for a different period, they shall specify the different rates of interest applied for each such period.
(7) The trustees of the scheme may request further information and documents in respect of an application made to them under this section.
Enforcement of entitlement of beneficiary
81N. (1) Where, in respect of a member referred to in section 81L(1)(c), a person referred to in section 81L(1)(c)(i) —
(a) married that member in the State within the period referred to in section 81L(1)(iii) or whose marriage to that member was recognised in the State within the period specified in section 81L(1)(iv), or
(b) entered into a civil partnership registration with that member within the period referred to in section 81L(1)(i) or whose relationship with that member is recognised as a civil partnership in the State pursuant to an order referred to, and made within the period specified, in section 81L(1)(ii),
has not received the benefits referred to in section 81L(1)(a) due to him or her, the person (in this section ‘applicant’) may apply to the Circuit Court for an order under subsection (3).
(2) An application under subsection (1) shall be made within 12 months of—
(a) the death of the member, or
(b) where the member died on or before the coming into operation of this Part, the day on which this Part comes into operation,
and shall be made on notice to the trustees of the scheme.
(3) The Circuit Court may make an order directing the trustees of the defined benefit scheme to pay the benefits referred to in section 81L(1)(a) which are due to the applicant where it is satisfied that the following requirements have been met:
(a) the applicant and the member were in a committed relationship referred to in section 81L(1)(c)(i) on or before the day referred to in that provision;
(b) the marriage or civil partnership registration was entered into, or as the case may be, recognised in the State in accordance with subparagraphs (i), (ii), (iii) or (iv) of section 81L(1) ;
(c) the trustees have confirmed to the satisfaction of the Court that the requirements of section 81L(2) have been satisfied.”.
PART 4
Amendments to Civil Registration Act 2004
Definition (Part 4)
28. In this Part “Act of 2004” means the Civil Registration Act 2004 .
Amendment of section 7 of Act of 2004
29. Section 7 of the Act of 2004 is amended—
(a) in subsection (4), by the substitution of “3” for “7” in each place where it occurs, and
(b) by the insertion of the following subsection after subsection (5):
“(5A) A person appointed to be an tArd-Chláraitheoir may at any time resign his or her office by letter addressed to the Minister and the resignation shall take effect on and from the date of receipt of the letter.”.
Amendment of section 9 of Act of 2004
30.Section 9 of the Act of 2004 is amended—
(a) in subsection (6), by the substitution of “3” for “7” in each place where it occurs, and
(b) by the insertion of the following subsection after subsection (7):
“(7A) A person appointed to be an tArd-Chláraitheoir Cúnta may at any time resign his or her office by letter addressed to the Minister and the resignation shall take effect on and from the date of receipt of the letter.”.
Regulations
S.I. No. 107 of 1997.
PENSION SCHEMES (FAMILY LAW) REGULATIONS, 1997
ARRANGEMENT OF REGULATIONS
Part 1
General
PENSION SCHEMES (FAMILY LAW) REGULATIONS, 1997.
The Minister for Social Welfare, in exercise of the powers conferred on him by section 5 of the Pensions Act, 1990 (No. 25 of 1990), as amended by section 4 of the Pensions (Amendment) Act, 1996 (No. 18 of 1996) and section 47 of the Family Law (Divorce) Act, 1996 (No. 33 of 1996), hereby makes the following Regulations:
PART 1 GENERAL
1 Citation and Commencement
1. (1) These Regulations may be cited as the Pension Schemes (Family Law) Regulations, 1997.
(2) These Regulations shall come into operation on the 27th day of February, 1997.
2 Revocation
2. The Occupational Pension Scheme ( Family Law Act, 1995 ) Regulations, 1997 ( S.I. No. 64 of 1997 ) are hereby revoked.
3 Definitions
3. (1) In these Regulations unless the context otherwise requires:—
“the Act of 1990” means the Pensions Act, 1990 ;
“the Act of 1995” means the Family Law Act, 1995 ;
“the Act of 1996” means the Family Law (Divorce) Act, 1996 ;
“accumulated value” means
(i) the realisable value of the units, shares or securities at a particular date, or averaged over a particular period before that date, in which, pursuant to the rules of the pension scheme, the contributions for retirement benefit paid by or in respect of a member spouse under the pension scheme are invested, or
(ii) the realisable value of the contributions for retirement benefit paid by or in respect of a member spouse under a defined contribution scheme, together with the national rate of interest or other investment return prescribed under the rules of the pension scheme, or
(iii) the amount of the proceeds of any insurance policies in which, pursuant to the rules of the pension scheme, the contributions for retirement benefit paid by or in respect of a member spouse under the pension scheme are invested,
less, in each case, the amount of any of the expenses of the pension scheme that, pursuant to the rules thereof, fall to be discharged out of the said realisable value or proceeds;
“active member”, in relation to a pension scheme, means a member of the pension scheme who is in reckonable service;
“actuarial value” means the equivalent cash value of a benefit (including, where appropriate, provision for any revaluation of such benefit) under a pension scheme calculated by reference to appropriate financial assumptions and making due allowance for the probability of survival to normal pensionable age and thereafter in accordance with normal life expectancy on the assumption that the member concerned of the pension scheme, at the effective date of calculation, is in a normal state of health having regard to his or her age;
“actuary” means a person retained by the trustees of the pension scheme concerned who is qualified to act as actuary to the pension scheme concerned pursuant to the Act of 1990;
“additional voluntary contributions” means such contributions (if any) as are paid on a voluntary basis by a member of an occupational pension scheme and are designed to fully provide additional benefits;
“approved arrangement”, in relation to the trustees of a pension scheme, means an arrangement whereby the trustees, on behalf of the person for whom the arrangement is made, effect policies or contracts of insurance that are approved of by the Revenue Commissioners with, and make the appropriate payments under the policies or contracts to, one or more undertakings;
“contingent benefit” means a benefit payable under a pension scheme, other than a benefit payable under section 12 (7) of the Act of 1995 or section 17 (7) of the Act of 1996, to or for one or more of the following, that is to say, the widow or the widower and any dependants of the member spouse concerned and the personal representative of the member spouse, if the member spouse dies while in relevant employment and before attaining any normal pensionable age provided for under the rules of the pension scheme;
“the court” shall be construed in accordance with section 38 of the Act of 1995 and section 38 of the Act of 1996;
“current pensioner”, in relation to a pension scheme, means a member of the pension scheme whose reckonable service has terminated and who is in receipt of retirement benefit from the pension scheme;
“decree” means a decree to which section 12 of the Act of 1995 or section 17 of the Act of 1996 applies;
“deferred pensioner”, in relation to a pension scheme, means a member of the pension scheme whose reckonable service has terminated and who is not in receipt of retirement benefit from the pension scheme;
“defined benefit basis” means the basis of calculating a retirement benefit which, is not a defined contribution basis;
“defined benefit scheme” means a pension scheme which is not a defined contribution scheme;
“defined contribution basis” means the basis of calculating a retirement benefit whereby the rate or amount of the retirement benefit is directly determined by the amount of the contributions paid by or in respect of the member of the pension scheme concerned;
“defined contribution scheme” means a pension scheme which, under its rules, provides retirement benefit, the rate or amount of which is in total directly determined by the amount of the contributions paid by or in respect of the member of the pension scheme concerned and includes a pension scheme the contributions under which are used, directly or indirectly, to provide
( a ) contingent benefit, and
( b ) retirement benefit the rate or amount of which is in total directly determined by the part of the contributions aforesaid that is used for the provision of the retirement benefit;
“dependent member of the family”, in relation to a spouse, or the spouses, concerned, means any child
( a ) of both spouses or adopted by both spouses under the Adoption Acts, 1952 to 1991, or in relation to whom both spouses are in loco parentis, or
( b ) of either spouse or adopted by either spouse under those Acts or in relation to whom either spouse is in loco parentis, where the other spouse, being aware that he or she is not the parent of the child, has treated the child as a member of the family,
who is under the age of 18 years or if the child has attained that age
(i) is or will be or, if an order were made under the Act of 1995 or the Act of 1996 providing for periodical payments for the benefit of the child or for the provision of a lump sum for the child, would be receiving full-time education or instruction at any university, college, school or other educational establishment and is under the age of 23 years, or
(ii) has a mental or physical disability to such an extent that it is not reasonably possible for the child to maintain himself or herself fully;
“designated benefit”, in relation to an order under section 12 (2) of the Act of 1995 or section 17 (2) of the Act of 1996, means an amount determined by the trustees of the pension scheme concerned by reference to the period and the percentage specified in the order and in accordance with these regulations;
“earmarked contributions” means all contributions paid by, or in respect of, the member spouse for the purpose of retirement benefit during the relevant period provided that a payment in respect of the member spouse representing a transfer of accrued rights from another pension scheme shall be treated as earmarked contributions only to the extent that the payment is referable to contributions paid to, or rights accrued in, the pension scheme (from which the payment was received) during the relevant period;
“member”, in relation to a pension scheme, means any person who, having been admitted to membership of the pension scheme under its rules, remains entitled to any benefit under the pension scheme;
“member spouse”, in relation to a pension scheme, means a spouse who is a member of the pension scheme concerned;
“non member spouse”, in relation to a pension scheme, means the spouse of the member spouse;
“normal pensionable age” means the earliest age at which a member of a pension scheme is entitled to receive benefits under the rules of the pension scheme on retirement from relevant employment disregarding any such rules providing for early retirement on grounds of ill health or otherwise;
“order”, except in the definition of dependent member of the family, means a pension adjustment order made by the court under section 12 of the Act of 1995 or section 17 of the Act of 1996; “pension scheme” means
( a ) an occupational pension scheme (within the meaning of section 2 (1) the Act of 1990) (referred to herein as an “occupational pension scheme”), or
( b ) (i) an annuity contract approved by the Revenue Commissioners under section 235 of the Income Tax Act, 1967 , (referred to herein as a “Section 235 retirement annuity contract”) or a contract so approved under section 235A of that Act,
(ii) a trust scheme, or part of a trust scheme, so approved under subsection (4) of the said section 235 or subsection (5) of the said section 235A (referred to herein as a “trust pension scheme”),
(iii) a policy or contract of assurance approved by the Revenue Commissioners under Chapter II of Part I of the Finance Act, 1972 , or
( c ) any other scheme or arrangement (including a personal pension plan and a scheme or arrangement established by or pursuant to statute or instrument made under statute other than under the Social Welfare Acts) that provides or is intended to provide either or both of the following, that is to say:
(i) benefits for a person who is a member of the scheme or arrangement (“the member”) upon retirement at normal pensionable age or upon earlier or later retirement or upon leaving, or upon the ceasing of, the relevant employment,
(ii) benefits for the widow, widower or dependants of the member, or for any other persons, on the death of the member;
“reckonable service” means service in relevant employment during membership of any pension scheme;
“relevant employment”, in relation to a pension scheme, means any employment (or any period treated as employment) or any period of self employment to which a pension scheme applies;
“relevant period” means the period of reckonable service of the member spouse, prior to the granting of the decree, which the order specifies is to be taken into account ;
“relevant percentage” means the percentage of the retirement benefit accrued during the relevant period which the order specifies is to be paid to the person specified in the order;
“residual benefit” means the amount of retirement benefit remaining in respect of the member spouse concerned after deduction therefrom of the relevant designated benefit or the amount of contingent benefit remaining in respect of the member spouse concerned after deduction therefrom of the amount of contingent benefit payable pursuant to an order under section 12 (3) of the Act of 1995 or section 17 (3) of the Act of 1996 and the amount of payment made under section 12 (7) of the Act of 1995 or section 17 (7) of the Act of 1996;
“retirement benefit”, in relation to a pension scheme, means all benefits (other than contingent benefits) payable under the pension scheme;
“retirement benefit service”, in relation to a pension scheme, means the period of reckonable service within that pension scheme excluding:
( a ) any period of reckonable service where the only benefit in respect of such service is in respect of death prior to normal pensionable age;
( b ) any period of reckonable service where the member has been notified in writing by the trustees, or the rules of the scheme so provide, that a period of service does not entitle him to retirement benefit;
( c ) in the case of additional voluntary contributions, a scheme year (as defined in the Occupational Pension Schemes (Disclosure of Information) Regulations, 1991 ( S.I. No. 215 of 1991 )) in which no additional voluntary contribution was made;
( d ) in the case of a Section 235 retirement annuity contract or a trust pension scheme, a tax year in which no contribution was made;
“rules”, in relation to a pension scheme, means the provisions of the pension scheme, by whatever name they are called;
“rules in force”, in relation to a pension scheme, means the rules of the pension scheme in force at the date of the decree (subject to any overriding provisions of the Act of 1990) ;
“spouse” includes a person who is a party to a marriage that has been dissolved under the Act of 1996 or under the law of a country or jurisdiction other than the State;
“transfer amount” shall be construed in accordance with section 12 (4) of the Act of 1995 and section 17 (4) of the Act of 1996;
“trustees”, in relation to a pension scheme that is established under a trust, means the trustees of the pension scheme and, in relation to a pension scheme not so established, means the persons who administer the pension scheme;
“undertaking” has the meaning assigned to it by the Insurance Act, 1989 .
(2) In these regulations, a reference to a Part or article is to a Part or article of these regulations and a reference to a paragraph is to the paragraph of the article in which the reference occurs, unless it is indicated that reference to, some other provision is intended.
(3) In these regulations a reference to any enactment includes reference thereto as subsequently amended.
PART 2 CALCULATION OF DESIGNATED BENEFIT
4 General
4. (1) Where an order is made under section 12 (2) of the Act of 1995 or section 17 (2) of the Act of 1996 in relation to a member spouse’s retirement benefit the designated benefit payable pursuant to that order shall be calculated in accordance with the rules in force of the pension scheme concerned subject to and in accordance with this Part of the regulations.
(2) Subject to articles 6, 22, 23 and 24, articles 7, 8, 9, 10, 11, 12, 13 and 14 prescribe the calculation of the designated benefit payable from a defined benefit scheme except insofar as the designated benefit is derived from a retirement benefit secured by additional voluntary contributions or which represents a transfer of accrued rights from another pension scheme. The calculation of the designated benefit derived from a retirement benefit secured by additional voluntary contributions is prescribed by article 20. The calculation of the designated benefit derived from a retirement benefit which represents a transfer of accrued rights from another pension scheme is prescribed by article 21.
(3) Subject to articles 6, 21, 22 and 23, articles 15, 16, 17, 18 and 19 prescribe the calculation of the designated benefit payable from a defined contribution scheme.
5 Pension Adjustment Order
5. In calculating the designated benefit, the trustees of the pension scheme shall give effect to the provisions of the order which shall include the relevant period and the relevant percentage.
6 Determination of type of pension scheme
6. (1) Where the rate or amount of part of the member spouse’s retirement benefit payable under a defined benefit scheme is determined on a defined contribution basis, then, without prejudice to the provisions of section 12 (6) of the Act of 1995 and section 17 (6) of the Act of 1996, for the purposes of these regulations, the pension scheme in so far as it relates to such part of the retirement benefit shall be treated as a defined contribution scheme and, in so far as it relates to the remaining part of the retirement benefit, shall be treated as a defined benefit scheme.
(2) Pursuant to article 6 (1) references in these regulations (with the exception of article 34 (1) (a)) to a defined contribution scheme or to a defined benefit scheme shall be construed as including references to a part of such a pension scheme.
7 Defined Benefit Scheme – Active member – Calculation of designated benefit at normal pensionable age
7. (1) Where the member spouse is an active member of the defined benefit scheme concerned at the date of the order whose reckonable service does not terminate before normal pensionable age and who receives or commences to receive retirement benefit at normal pensionable age (as defined under the rules in force) the designated benefit payable from that pension scheme shall be calculated in accordance with this article.
(2) The designated benefit shall be calculated in accordance with the following formula:
(A x B x P) / C
A
=
the amount of retirement benefit at normal pensionable age, payable in accordance with the rules in force (excluding any such benefit secured by additional voluntary contributions or which represents a transfer of accrued rights from another pension scheme) ;
B
=
the period of retirement benefit service which the member spouse has completed within the relevant period;
C
=
the period of retirement benefit service which the member spouse has completed at normal pensionable age as defined under the rules in force;
P
=
the relevant percentage.
Provided that :
( a ) in determining B and C, retirement benefit service shall be calculated disregarding any rule of the pension scheme under which the period to be taken into account in calculating retirement benefit is subject to an upper limit;
( b ) the period of retirement benefit service shall be calculated as the trustees decide to the next highest or next lowest month or any period within that range and the same basis shall be used to determine B and C;
( c ) the amount of designated benefit shall be calculated as the trustees decide to the next highest or next lowest whole pound or any amount within that range.
8 Defined Benefit Scheme – Active member – Calculation of designated benefit on retirement earlier than normal pensionable age
8. (1) Subject to article 9 where the member spouse is an active member of the defined benefit scheme concerned at the date of the order and subsequently receives or commences to receive retirement benefit (other than a refund of the contributions paid to that pension scheme) on termination of reckonable service before normal pensionable age (as defined under the rules in force), the designated benefit payable from that pension scheme shall be calculated in accordance with this article.
(2) The designated benefit shall be calculated in accordance with the formula in article 7 (2) except that:
A
=
the amount of retirement benefit payable in accordance with the rules in force (excluding any such benefit secured by additional voluntary contributions or which represents a transfer of accrued rights from another pension scheme);
C
=
the period of retirement benefit service which the member spouse has completed to the date of the member spouse’s termination of reckonable service.
9 Defined Benefit Scheme – Enhanced retirement benefit payable prior to normal pensionable age due to incapacity
9. Where the member spouse is an active member of the defined benefit scheme concerned at the date of the order and subsequently receives or commences to receive retirement benefit on termination of reckonable service as a result of incapacity (within the meaning of that term under the requirements of the Revenue Commissioners for approval of an occupational pension scheme under Chapter II of Part I of the Finance Act, 1972 ) prior to normal pensionable age, the designated benefit payable from that pension scheme shall be calculated in accordance with the formula in article 7 (2) except that:
A
=
the amount of retirement benefit payable in accordance with the rules in force in relation to retirement on incapacity excluding: any such benefit secured by additional voluntary contributions; any such benefit which represents a transfer of accrued rights from another pension scheme; and any additional benefit granted under the rules of the pension scheme specifically on account of retirement on incapacity (other than any additional benefit resulting from the waiving of the reduction in retirement benefit which would normally apply on early payment of retirement benefit);
C
=
the period of retirement benefit service which the member spouse has completed to the date of the member spouse’s termination of reckonable service.
10 Defined Benefit Scheme – Active Member – Calculation of designated benefit on retirement later than normal pensionable age
10. (1) Where the member spouse is an active member of the defined benefit scheme concerned at the date of the order and subsequently receives or commences to receive retirement benefit later than normal pensionable age (as defined under the rules in force), the designated benefit payable from that pension scheme shall be calculated in accordance with this article.
(2) The designated benefit shall be calculated in accordance with the formula in article 7 (2) except that:
A
=
the amount of retirement benefit payable in accordance with the rules in force (excluding any such benefit secured by additional voluntary contributions or which represents a transfer of accrued rights from another pension scheme);
C
=
the period of retirement benefit service which the member spouse has completed to the date of the member spouse’s termination of reckonable service.
11 Defined Benefit Scheme – Active member – Calculation of designated benefit on retirement having previously withdrawn from reckonable service
11. (1) Where the member spouse is an active member of the defined benefit scheme concerned at the date of the order whose reckonable service terminates before normal pensionable age (as defined under the rules in force) other than on death or in accordance with article 8 or article 9, the designated benefit payable from that pension scheme shall be calculated in accordance with this article provided that where the member spouse’s reckonable service terminates and there is no entitlement to retirement benefit there shall be no designated benefit payable from that pension scheme.
(2) Subject to article 11 (3) the designated benefit shall be calculated in accordance with the formula in article 7 (2) except that:
A
=
the amount of retirement benefit which becomes payable in accordance with the rules in force (excluding any such benefit secured by additional voluntary contributions or which represents a transfer of accrued rights from another pension scheme);
C
=
the period of retirement benefit service which the member spouse has completed to the date of the member spouse’s termination of reckonable service.
(3) Where the rules of an occupational pension scheme provide, to a member spouse on termination of reckonable service, a retirement benefit in the form of a refund of contributions in respect of retirement benefit service completed prior to 1st January, 1991 and a retirement benefit in the form of a deferred benefit in respect of retirement benefit service completed on or after 1st January, 1991, the designated benefit payable from that pension scheme shall be calculated in accordance with the formula (A1 x B x P) / C in relation to the former and in accordance with the formula (A2 x B x P) / C in relation to the latter, where:
A1
=
the amount of retirement benefit payable in the form of a refund of contributions payable on the basis of the rules in force (excluding any such benefit secured by additional voluntary contributions or which represents a transfer of accrued rights from another pension scheme) relating to retirement benefit service completed prior to 1st January, 1991;
A2
=
the amount of retirement benefit payable in the form of a deferred benefit payable on the basis of the rules in force (excluding any such benefit secured by additional voluntary contributions or which represents a transfer of accrued rights from another pension scheme) relating to retirement benefit service completed on or after 1st January, 1991;
B
=
the period of retirement benefit service which the member spouse has completed within the relevant period;
C
=
the period of retirement benefit service which the member spouse has completed to the date of the member spouse’s termination of reckonable service ;
P
=
the relevant percentage.
(4) Where the rules of an occupational pension scheme provide to a member spouse on termination of reckonable service a retirement benefit in the form of a refund of contributions in respect of all retirement benefit service, the designated benefit shall be calculated in accordance with article 11 (2) .
12 Defined Benefit Scheme – Deferred pensioner – Calculation of designated benefit
12. (1) Where the member spouse is a deferred pensioner of the defined benefit scheme concerned at the date of the order, the designated benefit payable from that pension scheme shall be calculated in accordance with this article.
(2) The designated benefit shall be calculated in accordance with the formula in article 7(2) except that:
A
=
the amount of retirement benefit which becomes payable in accordance with the rules in force (excluding any such benefit secured by additional voluntary contributions or which represents a transfer of accrued rights from another pension scheme);
C
=
the period of retirement benefit service which the member spouse has completed to the date of the member spouse’s termination of reckonable service.
13 Defined Benefit Scheme – Current Pensioner – Calculation of designated benefit
13. (1) Where the member spouse is a current pensioner of the defined benefit scheme concerned at the date of the order, the designated benefit payable from that pension scheme shall be calculated in accordance with this article.
(2) The designated benefit shall be calculated in accordance with the formula in article 7 (2) except that:
A
=
the amount of future payments of retirement benefit payable under the rules in force (excluding any such benefit secured by additional voluntary contributions or which represents a transfer of accrued rights from another pension scheme);
C
=
the period of retirement benefit service which the member spouse has completed to the date of the member spouse’s termination of reckonable service.
14 Defined Benefit Scheme – Improvements and reductions in retirement benefit
14. Subject to articles 22 and 36 where the basis of calculating retirement benefit under a defined benefit scheme is altered prior to the date of the decree the alteration shall be taken into account in calculating the designated benefit but where the basis is altered after the date of the decree the alteration shall not be taken into account in the calculation of the designated benefit.
15 Defined Contribution Scheme – Active member – Calculation of designated benefit at retirement
15. (1) Subject to article 19 where the member spouse is an active member of the defined contribution scheme concerned at the date of the order and subsequently receives or commences to receive retirement benefit (other than in the form of a refund of contributions) on termination of reckonable service or is an active member of the defined contribution scheme concerned at the date of the order and subsequently receives or commences to receive retirement benefit prior to termination of reckonable service, the designated benefit payable from that pension scheme
( a ) shall be such that its actuarial value, as at the date the member spouse commences to receive retirement benefit, is equal to the accumulated value of the relevant percentage of the earmarked contributions and
( b ) shall be determined in accordance with this article.
(2) Where the rules in force include a rule which allows the member spouse to receive part of his retirement benefit in lump sum form, an equivalent option shall be provided to the person in whose favour the order is made. The amount of designated benefit available in lump sum form shall be calculated in accordance with the following formula:
(L x M x P) / N
L
=
the amount of retirement benefit available in lump sum form to the member spouse in accordance with the rules in force;
M
=
the period of retirement benefit service which the member spouse has completed within the relevant period;
N
=
the period of retirement benefit service which the member spouse has completed to the date of the member spouse’s termination of reckonable service;
P
=
the relevant percentage.
(3) The remaining part of the designated benefit (if any) shall be calculated in accordance with the following formula:
T x R / S
T
=
the amount of retirement benefit payable to the member spouse in pension form in accordance with the rules in force having regard to the amount of any retirement benefit paid in lump sum form to the member spouse and the amount of any designated benefit paid in lump sum form to the person in whose favour the order is made;
R
=
the accumulated value, as at the date the member spouse commences to receive retirement benefit, of the relevant percentage of the earmarked contributions less the amount of any designated benefit paid in lump sum form in accordance with article 15 (2);
S
=
the accumulated value, as at the date the member spouse commences to receive retirement benefit, of all contributions paid by, or in respect of, the member spouse for the purpose of retirement benefit less the amount of any retirement benefit paid in lump sum form to the member spouse and less the amount of any designated benefit paid in lump sum form to the person in whose favour the order is made.
Provided that in determining the amount of retirement benefit payable to the member spouse (“t” in above formula), any option exercised by the member spouse in favour of a third party shall be ignored.
16 Defined Contribution Scheme – Active member – Calculation of designated benefit on retirement having previously withdrawn from reckonable service
16. (1) Subject to article 19 where the member spouse is an active member of the defined contribution scheme concerned at the date of the order and subsequently terminates reckonable service before normal pensionable age (as defined under the rules in force) other than on death or in accordance with article 15, the designated benefit payable from that pension scheme
( a ) shall be such that its actuarial value, as at the date the member spouse commences to receive retirement benefit, is equal to the accumulated value of the relevant percentage of the earmarked contributions (excluding any contributions which are not payable as a retirement benefit to or in respect of the member spouse) and
( b ) shall be determined in accordance with this article
provided that where the member spouse’s reckonable service terminates and there is no entitlement to retirement benefit there shall be no designated benefit payable from that pension scheme.
(2) Subject to articles 16 (3) and 16 (4) where the rules in force provide that the member spouse may receive part of his retirement benefit in lump sum form, the amount of designated benefit available in lump sum form to the person in whose favour the order is made shall be calculated in accordance with article 15 (2) and the remaining part of the designated benefit (if any) shall be calculated in accordance with article 15 (3).
(3) Where the rules in force of an occupational pension scheme provide, to a member spouse on termination of reckonable service, a retirement benefit in the form of a refund of contributions in respect of contributions paid prior to 1st January, 1991 and a retirement benefit in the form of a deferred benefit in respect of contributions paid on or after 1st January 1991, the designated benefit payable from that pension scheme shall be calculated as follows:
( a ) the designated benefit relating to the part of the retirement benefit that is paid in the form of a refund of contributions shall be calculated as the accumulated value, as at the date of the member spouse’s termination of reckonable service, of the relevant percentage of the earmarked contributions made prior to 1st January 1991 by the member spouse;
( b ) where the rules in force provide that the member spouse may receive part of his deferred benefit in lump sum form, the amount of designated benefit available in lump sum form shall be calculated in accordance with article 15 (2) (except that in determining “M” and “N”, retirement benefit service shall not include any period of reckonable service completed prior to 1st January 1991);
( c ) the remaining part of the designated benefit (if any) shall be calculated in accordance with article 15 (3) (except that in determining “R” and “S”, the earmarked contributions shall not include any contributions made prior to 1st January 1991) .
(4) Where the rules in force of an occupational pension scheme provide, to a member spouse on termination of reckonable service, a retirement benefit in the form of a refund of contributions in respect of all contributions paid to the pension scheme concerned, designated benefit payable from that pension scheme shall be the accumulated value, as at the date of the member spouse’s termination of reckonable service, of the relevant percentage of the earmarked contributions paid by the member spouse.
17 Defined Contribution Scheme – Deferred Pensioner – Calculation of designated benefit
17. Subject to article 19 where the member spouse is a deferred pensioner of the defined contribution scheme concerned at the date of the order, the designated benefit when the member spouse commences to receive his retirement benefit shall be calculated in accordance with article 15 except that earmarked contributions shall not include any contributions made by or on behalf of the member spouse which are not taken into account in determining retirement benefit.
18 Defined Contribution Scheme Current pensioner Calculation of designated benefit
18. (1) Subject to article 19 where the member spouse is a current pensioner of the defined contribution scheme concerned at the date of the order, the designated benefit payable from that pension scheme shall be calculated in accordance with this article.
(2) The designated benefit shall be calculated in accordance with the following formula:
D x E / F
D
=
the amount of future payments of retirement benefit to, or in respect of, the member spouse;
E
=
the accumulated value, as at the date the member spouse commenced to receive retirement benefit, of the relevant percentage of the earmarked contributions;
F
=
the accumulated value, as at the date the member spouse commenced to receive retirement benefit, of all contributions paid by, or in respect of, the member spouse for the purpose of retirement benefit.
19 Defined Contribution Scheme – Insufficient information to accurately identify and calculate the accumulated value
19. The designated benefit may be calculated on such alternative basis as the trustees consider to be reasonable and equitable where the information required to accurately identify and calculate the accumulated value of the earmarked contributions cannot be obtained.
20 Additional Voluntary Contributions
20. Where a member spouse is entitled to additional retirement benefit under a defined benefit scheme by virtue of the payment of additional voluntary contributions, the designated benefit in respect of such retirement benefit shall be calculated in accordance with the following formula:
(X x Y x P) / Z
X
=
the amount of additional retirement benefit payable to, or in respect of, the member spouse by virtue of making additional voluntary contributions ;
Y
=
the period of retirement benefit service during which the member spouse has paid additional voluntary contributions which falls within the relevant period ;
Z
=
the total period of retirement benefit service during which the member spouse has paid additional voluntary contributions;
P
=
the relevant percentage.
Provided that where the rate at which the member spouse has made additional voluntary contributions has altered at any time after the date of the decree, the value “X” in the formula shall be based on the amount of additional retirement benefit payable to, or in respect of, the member spouse by virtue of making additional voluntary contributions at the rate of contribution in force at the date of the decree.
21 Retirement benefit provided in respect of a transfer of accrued rights from another pension scheme
21. Where a member spouse is entitled to additional retirement benefit under a pension scheme (hereinafter referred to as “the receiving scheme”) in respect of a transfer of accrued rights (hereinafter referred to as “the transferred rights”) from another pension scheme (hereinafter referred to as “the previous scheme”) :
( a ) Where the transfer of accrued rights occurs after the date of the order no designated benefit shall be payable from the receiving scheme in respect of the transferred rights.
( b ) Where the transfer of accrued rights occurs before the date of the order and where the additional retirement benefit in respect of the transferred rights is determined on a defined benefit basis, the designated benefit in respect of such additional retirement benefit shall be calculated in accordance with the following formula:
K
=
the amount of additional retirement benefit payable to or in respect of the member spouse under the receiving scheme by virtue of the transferred rights from the previous scheme ;
L
=
the period of retirement benefit service which the member spouse has completed in the previous scheme which falls within the relevant period;
M
=
the period of retirement benefit service which the member spouse has completed in the previous scheme which gave rise to the transferred rights;
P
=
the relevant percentage.
22 Defined Benefit Scheme switches to defined contribution basis
22. (1) Where the basis of calculation of retirement benefit provided by a pension scheme is altered from a defined benefit basis to a defined contribution basis after the date of the decree the designated benefit payable from that pension scheme shall be calculated on a defined benefit basis in accordance with the relevant regulations of this Part.
Provided that where :
(i) resources have been allocated on a defined contribution basis, on behalf of the member spouse, in lieu of retirement benefit previously calculated on a defined benefit basis; and
(ii) the resources allocated are not less than the actuarial value of the retirement benefit which would have been payable to, or in respect of, the member spouse under the pension scheme had his reckonable service terminated on the date that the basis of calculation of retirement benefit was altered from a defined benefit basis to a defined contribution basis,
the designated benefit in respect of such retirement benefit may, if the trustees of the pension scheme so decide, be calculated as if such allocation was a transfer of accrued rights from another pension scheme.
(2) Where the basis of calculation of retirement benefit provided by a pension scheme is altered from a defined benefit basis to a defined contribution basis prior to the date of the decree the designated benefit payable from that pension scheme shall be calculated in accordance with the following:
( a ) Where the member spouse’s retirement benefit in respect of a period of retirement benefit service is calculated on a defined benefit basis, while his retirement benefit in respect of a subsequent period is calculated on a defined contribution basis, the designated benefit in respect of the defined benefit part and the designated benefit in respect of the defined contribution part shall be calculated separately in accordance with the relevant regulations of this Part.
( b ) Where resources have been allocated on a defined contribution basis, on behalf of the member spouse, in lieu of retirement benefit previously calculated on a defined benefit basis the designated benefit in respect of such retirement benefit shall be calculated as if such allocation was a transfer of accrued rights from another pension scheme.
23 Defined Contribution Scheme switches to defined benefit basis
23. (1) Where the basis of calculation of retirement benefit provided by a pension scheme is altered from a defined contribution basis to a defined benefit basis after the date of the decree the designated benefit payable from that pension scheme shall be calculated on a defined contribution basis in accordance with the relevant regulations of this Part.
(2) Where the basis of calculation of retirement benefit provided by a pension scheme is altered from a defined contribution basis to a defined benefit basis prior to the date of the decree the designated benefit payable from that pension scheme shall be calculated in accordance with the following:
( a ) where the member spouse’s retirement benefit in respect of a period of retirement benefit service is calculated on a defined contribution basis, while his retirement benefit in respect of a subsequent period is calculated on a defined benefit basis, the designated benefit in respect of the defined contribution part and the designated benefit in respect of the defined benefit part shall be calculated separately in accordance with the relevant regulations of this Part;
( b ) where all of the member spouse’s retirement benefit payable from the pension scheme concerned is calculated on a defined benefit basis, the designated benefit shall be calculated on a defined benefit basis in accordance with the relevant regulations of this Part.
24 Calculation of designated benefit following previous order
24. Where an order is made in relation to the member spouse’s retirement benefit (hereinafter referred to as the “subsequent order”) and an order has previously been made in relation to the member spouse’s retirement benefit from the same pension scheme (hereinafter referred to as the “previous order”) the designated benefit payable from the pension scheme pursuant to the subsequent order shall be calculated in accordance with the relevant regulations of this Part but so that where the member spouse’s retirement benefit is calculated on a defined benefit basis any reduction in retirement benefit in respect of designated benefit payable pursuant to the previous order shall be ignored.
PART 3 CALCULATION OF RESIDUAL BENEFIT
25 General
25. Where an order is made in relation to the member spouse’s retirement benefit the calculation of the residual benefit pursuant to section 12 (15) of the Act of 1995 or section 17 (15) of the Act of 1996 and the deduction from contingent benefit pursuant to section 12 (16) of the Act of 1995 or section 17 (16) of the Act of 1996 shall be in accordance with this Part of the regulations.
26 Retirement Benefit – Defined Benefit Scheme
26. Where an order is made in relation to the member spouse’s retirement benefit, and retirement benefit is calculated on a defined benefit basis, the retirement benefit payable to or in respect of the member spouse from that pension scheme shall be reduced by whichever of the following is applicable:
( a ) the designated benefit payable from that pension scheme pursuant to the order, or
( b ) designated benefit that would have been payable from that pension scheme pursuant to the order had it not been for
(i) the application of a transfer amount pursuant to section 12 (5) or section 12 (8) of the Act of 1995 or section 17 (5) or section 17 (8) of the Act of 1996
(ii) a payment pursuant to section 12 (9) or section 12 (10) of the Act of 1995 or section 17 (9) or section 17 (10) of the Act of 1996
provided that where the order ceases to have effect (other than through the order being discharged by means of the application of a transfer amount pursuant to section 12 (5) or section 12 (8) of the Act of 1995 or section 17(5) or section 17 (8) of the Act of 1996 or a payment pursuant to section 12 (9) or section 12 (10) of the Act of 1995 or section 17 (9) or section 17 (10) of the Act of 1996), retirement benefit payable to or in respect of the member spouse from that pension scheme shall not be reduced or, where the designated benefit has commenced prior to the order ceasing to have effect, shall no longer be reduced.
27 Retirement Benefit – Defined Contribution Scheme
27. Where an order is made in relation to the member spouse’s retirement benefit, and retirement benefit is calculated on a defined contribution basis, in calculating retirement benefit payable to the member spouse, from that pension scheme, the accumulated value as at the date of commencement of retirement benefit of all contributions made by or in respect of the member spouse for the purposes of retirement benefit shall be reduced by the accumulated value, as at the same date, of the relevant percentage of the earmarked contributions provided that where the order ceases to have effect (other than through the order being discharged by means of the application of a transfer amount pursuant to section 12 (5), section 12 (6) or section 12 (8) of the Act of 1995 or section 17 (5), section 17 (6) or section 17 (8) of the Act of 1996 or a payment pursuant to section 12 (9) or section 12 (10) of the Act of 1995 or section 17 (9) or section 17 (10) of the Act of 1996), retirement benefit payable to or in respect of the member spouse from that pension scheme shall not be reduced or, where the designated benefit has commenced prior to the order ceasing to have effect, shall no longer be reduced.
28 Contingent Benefit
28. Where an order is made in relation to the member spouse’s retirement benefit and the member spouse dies prior to commencement of the designated benefit, the amount of any contingent benefit payable in respect of the member spouse in accordance with the rules of the same pension scheme shall be reduced by the amount of the payment made under the order in accordance with article 40 on a basis which an actuary has approved as being consistent with the appropriate guidelines issued by the Society of Actuaries in Ireland.
PART 4 TRANSFER AMOUNTS
29 General
29. A transfer amount pursuant to section 12 (5), 12 (6) or 12 (8) of the Act of 1995 or section 17 (5), 17 (6) or 17 (8) of the Act of 1996 shall be calculated and applied in accordance with this Part of the regulations.
30 Transfer following an application from the non member spouse
30. (1) Where an application for a transfer amount is made by the non member spouse pursuant to section 12 (5) of the Act of 1995 or section 17 (5) of the Act of 1996, such an application shall not be regarded as being valid (herein referred to as a “valid application”) for the purposes of these regulations unless:
( a ) the application is made in writing to the trustees;
( b ) the application relates to the entire designated benefit; and
( c ) the application is accompanied by whatever information is reasonably required by the trustees.
(2) Where the trustees of a pension scheme receive a valid application for a transfer amount from the non member spouse they shall, within 3 months of the date of receipt of the valid application, apply the transfer amount in accordance with this Part of the regulations.
31 Calculation of Transfer Amount Defined Benefit Scheme
31. (1) Subject to articles 31 (2) and 31 (3) the transfer amount in respect of a designated benefit, or part of a designated benefit, which has been calculated on a defined benefit basis and which is being applied, pursuant to section 12 (5) of the Act of 1995 or section 17 (5) of the Act of 1996 shall be the actuarial value of the designated benefit or part thereof payable from that pension scheme as at the date of receipt by the trustees of a valid application.
(2) Subject to article 31 (3) where the member spouse is an active member of the pension scheme concerned at the date of receipt by the trustees of a valid application, the designated benefit, for the purposes of calculating a transfer amount, shall be the designated benefit which would have been payable had the member spouse’s reckonable service terminated on the date of receipt of such application and had the designated benefit been calculated in accordance with article 11.
(3) The transfer amount shall be calculated on a basis which an actuary has approved as being consistent with the appropriate guidelines issued by the Society of Actuaries in Ireland. In particular and without prejudice to the generality of the foregoing, where the pension scheme concerned is an occupational pension scheme which is a funded scheme within the meaning of that term under section 2 (1) of the Act of 1990, the adequacy of the funding of the pension scheme as at the date of receipt of a valid application may be reflected, in the calculation of the transfer amount to the extent that it would be so reflected in dealing with an equivalent application for payment of a transfer value in respect of the retirement benefit payable to the member spouse.
32 Calculation of Transfer Amount Defined Contribution Scheme
32. (1) Subject to articles 32 (2) and 32 (3) the transfer amount in respect of a designated benefit, or part of a designated benefit, which has been calculated on a defined contribution basis and which is being applied pursuant to section 12 (5) of the Act of 1995 or section 17 (5) of the Act of 1996 shall be the accumulated value of the relevant percentage of the earmarked contributions.
(2) Subject to article 32 (3) where the member spouse is an active member of the pension scheme concerned at the date of receipt by the trustees of a valid application, earmarked contributions shall not include any contributions which would not have been payable as a retirement benefit to the member spouse had his reckonable service terminated on the date of receipt of such application.
(3) The accumulated value shall be determined on a date not later than 3 months following the date of receipt by the trustees of a valid application.
33 Application of transfer amount
33. (1) Where a valid application has been made the transfer amount pursuant to section 12 (5) of the Act of 1995 or section 17 (5) of the Act of 1996 shall be applied in accordance with this article.
(2) Where the transfer amount is applied pursuant to paragraph (i) of section 12 (5) of the Act of 1995 or paragraph (i) of section 17 (5) of the Act of 1996, the trustees of the pension scheme of which the member spouse is a member shall ensure that :
( a ) the benefit or benefits to be provided to, or in respect of, the non member spouse are of an actuarial value equivalent to the transfer amount;
( b ) the benefit or benefits are in such form as the trustees and the non member spouse agree provided that such benefits conform to any requirements of the Revenue Commissioners ;
( c ) the non member spouse is informed in writing of the benefits to be provided as soon as practicable after the transfer amount has been applied.
(3) Where the transfer amount is applied pursuant to paragraph (ii) (1) of section 12 (5) of the Act of 1995 or paragraph (ii) (1) of section 17 (5) of the Act of 1996, the trustees of the other occupational pension scheme shall ensure that:
( a ) the benefit or benefits to be provided to, or in respect of, the non member spouse are of an actuarial value equivalent to the transfer amount;
( b ) the benefit or benefits are in such form as the trustees of the other occupational pension scheme and the non member spouse agree provided that such benefits conform to any requirements of the Revenue Commissioners;
( c ) the non member spouse is informed in writing of the benefits to be provided as soon as practicable after the transfer amount has been applied.
(4) Where the transfer amount is applied pursuant to paragraph (ii) (II) of section 12 (5) of the Act of 1995 or paragraph (ii) (II) of section 17 (5) of the Act of 1996, the trustees of the pension scheme of which the member spouse is a member shall ensure that:
( a ) the transfer amount is paid directly to the undertaking concerned;
( b ) the application conforms with any requirements of the Revenue Commissioners.
34 Transfer initiated by Trustees
34. (1) Where an order is made in relation to a member spouse’s retirement benefit and either
( a ) the designated benefit is payable from a defined contribution scheme, or
( b ) the member spouse concerned ceases to be a member of the pension scheme otherwise than on death
the trustees of the pension scheme concerned may give effect to the order by applying a transfer amount pursuant to section 12 (6) or section 12 (8) of the Act of 1995 or section 17 (6) or section 17 (8) of the Act of 1996 in accordance with this article.
(2) Where the designated benefit, or part of the designated benefit is calculated on a defined contribution basis, the transfer amount shall be the accumulated value, as at the date of application of the transfer amount, of the relevant percentage of the earmarked contributions provided that where the member spouse concerned ceases to be a member of the pension scheme concerned otherwise than on death earmarked contributions shall not include any contributions made by or on behalf of the member spouse which are not taken into account in determining retirement benefit.
(3) Where the designated benefit, or part of the designated benefit, is calculated on a defined benefit basis, the transfer amount shall be calculated in accordance with article 31 except that
( a ) where the pension scheme concerned is an occupational pension scheme which is a funded scheme within the meaning of that term under section 2 (1) of the Act of 1990, the adequacy of the funding of the pension scheme shall not be reflected in the calculation of the transfer amount
( b ) where the order is made in favour of a dependent member of the family, the transfer amount shall be calculated (on a basis which an actuary has approved as being consistent with the appropriate guidelines issued by the Society of Actuaries in Ireland) as the actuarial value, as at the date of application of the transfer amount, of the designated benefit which the person in whose favour the order is made could have expected to receive for so long only as he remained a dependent member of the family.
(4) Where the trustees propose to apply a transfer amount in accordance with this article such application shall not be effected if at the date of the proposed application the non member spouse concerned had made a valid application in accordance with article 30 and shall not be effected unless the trustees:
( a ) give written notice to the person in whose favour the order is made at least 30 days before the proposed transfer; and
( b ) have satisfied themselves that the benefits that will be provided to or in respect of the person concerned are of an actuarial value equivalent to the transfer amount (subject to reasonable charges, fees and costs).
(5) Where the transfer amount is applied pursuant to paragraph (i) of section 12 (8) of the Act of 1995 or paragraph (i) of section 17 (8) of the Act of 1996, the trustees of the pension scheme of which the member spouse is a member shall ensure that the benefit or benefits are in such form as the trustees and the person to whom the order is granted agree provided that such benefits conform to any requirements of the Revenue Commissioners.
(6) Where the transfer amount is applied in accordance with paragraph (a) of section 12 (6) or paragraph (ii) (1) of section 12 (8) of the Act of 1995 or paragraph (a) of section 17 (6) or paragraph (ii) (1) of section 17 (8) of the Act of 1996, the trustees of the other occupational pension scheme shall ensure that the benefit or benefits are in such form as the trustees of the other occupational pension scheme and the person to whom the order is granted agree and that such benefits conform to any requirements of the Revenue Commissioners.
(7) Where the transfer amount is applied in accordance with paragraph (b) of section 12 (6) or paragraph (ii) (II) of section 12 (8) of the Act of 1995 or paragraph (b) of Section 17 (6) or paragraph (ii) (II) of section 17 (8) of the Act of 1996, the trustees of the pension scheme of which the member spouse is a member shall ensure that :
( a ) the transfer amount is paid directly to the undertaking concerned;
( b ) the application conforms with any requirements of the Revenue Commissioners.
PART 5 PAYMENT OF DESIGNATED BENEFIT
35 General
35. Unless otherwise specified in the Act of 1995 or the Act of 1996, where an order is made in relation to the member spouse’s retirement benefit the designated benefit payable pursuant to the order shall be payable in accordance with the rules in force governing the payment of the member spouse’s retirement benefit and this Part of the regulations.
36 Pension Increases
36. (1) Where payment of retirement benefit has commenced and where the retirement benefit paid in pension form is increased (or would be increased if it were still in payment) by a cost of living increase under the rules in force (whether by way of exercise of discretion or otherwise) the designated benefit which is payable in pension form shall be increased at the same rate or in the same manner.
(2) In this article 36 “cost of living increase” means an increase in the pensions payable to or in respect of all members of the pension scheme, or to or in respect of a category of members of the pension scheme, which is designed to take account of an increase in the cost of living or a reduction in the purchasing power of pensions.
37 Exercisable Options
37. (1) Where the rules in force of a defined benefit scheme allow the member spouse the option of receiving part or all of his retirement benefit in lump sum form, and the member spouse has not received or commenced to receive retirement benefit, an equivalent option shall be provided to the person to whom an order in respect of the retirement benefit is granted and in determining the amount of pension equivalent to any designated benefit payable in lump sum form the conversion rate to be used shall be the same as the conversion rate applied to the member spouse’s retirement benefit.
(2) Where the rules in force allow the member spouse the option of receiving part or all of his retirement benefit in the form of a dependant’s pension payable to a third party following his death, the exercise of such an option by the member spouse shall not affect the calculation or payment of the designated benefit.
38 Benefits on death of non-member spouse following commencement of designated benefit
38. Where an order in relation to the member spouse’s retirement benefit is made in favour of the non-member spouse, who predeceases the member spouse following commencement of the designated benefit, the payment to be made in accordance with section 12 (10) of the Act of 1995 or section 17 (10) of the Act of 1996 shall be calculated on a basis which an actuary has approved as being consistent with the appropriate guidelines issued by the Society of Actuaries in Ireland. In particular and without prejudice to the generality of the foregoing, where the pension scheme concerned is an occupational pension scheme which is a funded scheme within the meaning of that term under Section 2(1) of the Act of 1990, the adequacy of the funding of the pension scheme as at the date the payment is provided for may be reflected in the calculation of the payment if the actuary is of the opinion that the resources of the pension scheme concerned would not be sufficient, if the pension scheme had been wound up on that date, to provide for the liabilities of the pension scheme in respect of the benefits payable as a first priority on winding up under subparagraph (a) (i) of Section 48 (1) of the Act of 1990.
39 Termination of reckonable service of member spouse
39. Where an order is made in relation to the member spouse’s retirement benefit and the member spouse is an active member of the pension scheme concerned at the date of the order, but his reckonable service terminates prior to commencement of his retirement benefit, the designated benefit shall be paid in accordance with this Part of the regulations, and in particular but without prejudice to the generality of the foregoing where part, or all, of the member spouse’s retirement benefit on termination of reckonable service is in the form of a refund of his contributions, the part of the designated benefit which relates to the refund of contributions shall be paid to the person specified in the order at the same time as the refund of contributions is paid to the member spouse.
40 Death of member spouse prior to commencement of designated benefit
40. (1) Where an order in relation to the member spouse’s retirement benefit is made and the member spouse predeceases the person in whose favour the order is made before payment of the designated benefit has commenced (and prior to a transfer amount being applied pursuant to section 12 (5), 12 (6) or 12 (8) of the Act of 1995 or section 17 (5), 17 (6) or 17 (8) of the Act of 1996), the payment to be made pursuant to section 12 (7) of the Act of 1995 or section 17 (7) of the Act of 1996 shall be calculated in accordance with whichever of the following paragraphs is applicable:
( a ) Where designated benefit is calculated on a defined benefit basis and the order is made in favour of the non member spouse the payment shall be calculated in accordance with article 31 as the transfer amount which would have been applied had that spouse made a valid application immediately prior to the member spouse’s death.
( b ) Subject to article 40 (2) where the designated benefit is calculated on a defined benefit basis and the order is made for the benefit of a dependent member of the family (“the person”) the payment shall be calculated as the actuarial value, as at the date of the member spouse’s death, of the designated benefit which would have been payable to the person, for so long only as he would have remained a dependent member of the family, provided that, where the member spouse was an active member of the pension scheme concerned on his death, the designated benefit, for the purposes of calculating the payment, shall be the designated benefit which would have been payable had the member spouse’s reckonable service terminated immediately prior to his death and had the designated benefit been calculated in accordance with article 11.
( c ) Where the designated benefit is calculated on a defined contribution basis the payment shall be calculated as the accumulated value, as at the date of the member spouse’s death, of the relevant percentage of the earmarked contributions provided that, where the member spouse was an active member of the pension scheme concerned on his death, earmarked contributions shall not include any contributions which would not have been payable as a retirement benefit to the member spouse had reckonable service terminated immediately prior to his death.
(2) The amount payable under paragraph (b) of article 40 (1) shall be calculated on a basis which an actuary has approved as being consistent with the appropriate guidelines issued by the Society of Actuaries in Ireland. In particular and without prejudice to the generality of the foregoing, where the pension scheme concerned is an occupational pension scheme which is a funded scheme within the meaning of that term under Section 2 (1) of the Act of 1990, the adequacy of the funding of the pension scheme as at the date the payment is provided for may be reflected in the calculation of the payment if it would be so reflected in dealing with an application for payment of a transfer value in respect of the retirement benefit which would have been payable to the member spouse but for the death of the member spouse.
41 Death of non-member spouse prior to commencement of designated benefit
41. Where an order in relation to the member spouse’s retirement benefit is made in favour of the non-member spouse and the non-member spouse predeceases the member spouse before payment of the designated benefit has commenced (and prior to a transfer amount being applied pursuant to section 12 (5), 12 (6) or 12 (8) of the Act of 1995 or section 17 (5), 17 (6) or 17 (8) of the Act of 1996) the payment to be made pursuant to section 12 (9) of the Act of 1995 or section 17 (9) of the Act of 1996 shall be calculated in accordance with articles 31 and 32 as the transfer amount which would have been applied had. the non member spouse made a valid application immediately prior to his death.
PART 6 CONTINGENT BENEFITS
42 General
42. Where an order is made under section 12 (3) of the Act of 1995 or section 17 (3) of the Act of 1996, which provides for the payment, upon the death of the member spouse, of such percentage (herein referred to as the “specified percentage”) of the contingent benefit that is payable under the pension scheme concerned the amount payable shall be calculated in accordance with this Part of the regulations.
43 Termination of relevant employment
43. For the purposes of section 12 (3) of the Act of 1995 and section 17 (3) of the Act of 1996 and this Part of the regulations:
(1) A member spouse’s relevant employment shall be treated as not terminated where:
( a ) in the case of a centralised scheme a member spouse’s employment ceases and after a period of less than one month following such cessation (or such longer period as the trustees of the pension scheme so decide in accordance with the rules of the pension scheme) he commences in the relevant employment of a different employer participating in the same pension scheme, or
( b ) in the case of a change in ownership of the employer or of the business of the employer a member spouse’s employment ceases and after a period of less than one month following such cessation (or such longer period as the trustees of the pension scheme so decide in accordance with the rules of the pension scheme) he commences in the relevant employment of the new employer and resumes membership of the same pension scheme.
(2) A member spouse’s service in relevant employment shall be treated as terminated where:
( a ) in the case of a centralised scheme a member spouse’s employment ceases and after a period of one month or more following such cessation (or such longer period as the trustees of the pension scheme so decide in accordance with the rules of the pension scheme) he commences in the relevant employment of a different employer participating in the same pension scheme, or
( b ) in the case of a change in ownership of the employer or of the business of the employer a member spouse’s employment ceases and after a period of one month or more following such cessation (or such longer period as the trustees of the pension scheme so decide in accordance with the rules of the pension scheme) he commences in the relevant employment of the new employer and resumes membership of the same pension scheme.
44 Temporary Absence
44. For the purpose of section 12 (3) of the Act of 1995 and section 17 (3) of the Act of 1996 and this Part of the regulations where a member spouse’s relevant employment is interrupted due to temporary absence such relevant employment shall be treated as not being terminated.
45 Specific Definitions
45. In this Part of the regulations unless the context otherwise requires:
“affiliated employer” means another employer where one of the employers is a subsidiary (within the meaning of Section 155 of the Companies Act, 1963 (No. 33 of 1963)) of the other, or where both employers are subsidiaries of a third employer;
“centralised scheme” means an occupational pension scheme with more than one participating employer, whether or not such an employer is an affiliated employer ;
“confinement” has the meaning assigned to it by section 41 of the Social Welfare (Consolidation) Act, 1993 ;
“temporary absence” means a period of absence by a member spouse from relevant employment :
(1) on account of the pregnancy or confinement of the member spouse, or
(2) in furtherance of a trade dispute as defined in section 8 of the Industrial Relations Act, 1990 (No. 19 of 1990), or
(3) where under the rules of the pension scheme a member spouse is treated as not having ceased relevant employment for the purposes of the pension scheme, or
(4) where the period of absence is less than one month, and
where following such absence the member spouse resumes service in the relevant employment relating to the same pension scheme.
46 Effect of Order
46. Where an order has been made under section 12 (3) of the Act of 1995 or section 17 (3) of the Act of 1996, the amount payable under the order shall be calculated as the specified percentage of the contingent benefit that is payable (or which but for the decree would have been payable) under the rules in force. This amount shall be payable irrespective of any reduction or cancellation of the contingent benefit under the pension scheme concerned subsequent to the date of the decree.
PART 7 CALCULATION UNDER SECTION 12 (25) OR SECTION 17 (25)
47 General
47. (1) Pursuant to a direction of the court under section 12 (25) of the Act of 1995 or section 17 (25) of the Act of 1996 the calculation of the value and amount of the retirement benefit and/or the amount of contingent benefit payable under the rules of the pension scheme concerned shall be provided in accordance with this Part of the regulations.
(2) The calculation shall relate to a date (herein referred to as “the specified date”) specified by the trustees of the pension scheme. The specified date shall not be earlier than twelve months before the date on which the trustees were directed to provide the calculation. Where the court directs the trustees to provide the calculation prior to the making of the order for the decree it shall be assumed for the purpose of providing the calculation that the order for the decree is made on the specified date.
48 Retirement benefit – Defined Benefit Basis
48. If part, or all, of the retirement benefit payable under the pension scheme concerned is determined on a defined benefit basis the trustees of the pension scheme shall furnish in writing the following information:
( a ) a calculation of the amount of each element of retirement benefit payable under the rules in force of the pension scheme which has accrued at the date of the making of the order for the decree assuming, where the member spouse is an active member of the pension scheme on the specified date, that the member spouse’s reckonable service terminated on that date;
( b ) the actuarial value of the retirement benefit at paragraph (a) as at the specified date calculated on a basis which an actuary has approved as being consistent with the appropriate guidelines issued by the Society of Actuaries in Ireland.
49 Retirement Benefit – Defined Contribution Basis
49. If part, or all, of the retirement benefit payable under the pension scheme concerned is determined on a defined contribution basis the trustees of the pension scheme shall furnish in writing a calculation of the accumulated value, as at the specified date, of the contributions paid by, or in respect of, the member spouse for the purpose of retirement benefit prior to the date of the making of the order for the decree excluding the accumulated value of any contributions which would not have been payable as a retirement benefit to the member spouse had his reckonable service terminated on the specified date.
50 Contingent Benefit
50. The trustees of the pension scheme shall furnish in writing a calculation of the amount of each element of contingent benefit payable (or which, but for the making of the order for the decree concerned, would have been payable) under the rules in force of the pension scheme assuming that the member spouse died on the specified date together with a reference to the specific rule of the rules under which each such element is payable.
GIVEN under the Official Seal of the Minister for Social Welfare this
27th day of February 1997.
PROINSIAS DE ROSSA
Minister for Social Welfare
The Minister for Equality and Law Reform hereby consents to the making of the foregoing Regulations.
GIVEN under the Official Seal of the Minister for Equality and Law Reform
this 27th day of February 1997.
MERVYN TAYLOR
Minister for Equality and Law Reform
EXPLANATORY NOTE
Section 12 of the Family Law Act,
1995 and section 17 of the Family Law (Divorce) Act, 1996 provide that the court may make a pension adjustment order on or following the grant of a decree of judicial separation or a decree of divorce. Section 5 (4) of the Pensions Act, 1990 (as amended by the Pensions (Amendment) Act, 1996 and the Family Law (Divorce) Act, 1996 ) provides for Regulations to be made specifying guidelines for the purpose of section 12 of the Act of 1995 and section 17 of the Act of 1996. In accordance with the provisions of section 5 (4) these Regulations provide, inter alia, for the manner in which a contingent benefit, a designated benefit, a residual benefit or a transfer amount payable on foot of a pension adjustment order are to be calculated together with the manner of calculating the actuarial value referred to in section 12 (10) of the Act of 1995 and section 17 (10) of the Act of 1996 and the amounts referred to in section 12 (25) of the Act of 1995 and section 17 (25) of the Act of 1996.
The Regulations come into force on the 27th day of February 1997.
S.I. No. 254/2012 –