McDonald v Flockhart Moffat Newton or Mcdonald [2015] ScotCS CSIH_61 (11 August 2015)

McDonald v Flockhart Moffat Newton or Mcdonald [2015] ScotCS CSIH_61 (11 August 2015)

The majority held that 'period of membership' in regulation 4 of the 2000 Regulations should be construed as 'active membership' only, i.e., the period during which the party was contributing to the pension scheme and acquiring value, not including periods of deferred or pensioner membership. This interpretation aligns with the statutory focus on assets acquired during the marriage and avoids including value not attributable to contributions made during the marriage. The appeal was refused, upholding the sheriff's decision to limit the matrimonial property portion of the pension to the period of active membership during the marriage.

Citation
[2015] ScotCS CSIH_61
Parties
Pursuer and Respondent: Thomas Clark McDonald; Defender and Appellant: Annie Flockhart Moffat Newton or McDonald
Jurisdiction
Scotland
Judgment Date
11 August 2015
Procedural Posture
Appeal / Judgment of the Inner House, Court of Session
Outcome
Appeal refused
Legal Topics
Financial Provision on Divorce, Pension Sharing Orders, Matrimonial Property, Statutory Interpretation
Family Law Pensions Law Financial Provision on Divorce Pension Sharing Orders Matrimonial Property Statutory Interpretation

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Parties

Thomas Clark McDonald

Pursuer and Respondent

Annie Flockhart Moffat Newton or McDonald

Defender and Appellant

Procedural Posture

Appeal / Judgment of the Inner House, Court of Session

Legal Issues

  1. 1 What proportion of the value of the husband's pension rights is referable to the period of marriage before separation for the purposes of a pension sharing order under the Family Law (Scotland) Act 1985?
  2. 2 How should 'period of membership' in regulation 4 of the Divorce etc. (Pensions) (Scotland) Regulations 2000 be interpreted for apportionment of pension value?

Ratio Decidendi

The majority held that 'period of membership' in regulation 4 of the 2000 Regulations should be construed as 'active membership' only, i.e., the period during which the party was contributing to the pension scheme and acquiring value, not including periods of deferred or pensioner membership. This interpretation aligns with the statutory focus on assets acquired during the marriage and avoids including value not attributable to contributions made during the marriage. The appeal was refused, upholding the sheriff's decision to limit the matrimonial property portion of the pension to the period of active membership during the marriage.

Court Disposition

Appeal refused

Orders

  • Sheriff's decision upheld; pension value referable to active membership during marriage only to be included as matrimonial property.