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01 JUN 2006

ANCILLARY RELIEF/PENSIONS: Martin-Dye v Martin-Dye [2006] EWCA Civ 681

(Court of Appeal; Lord Phillips of Worth Matravers, Thorpe and Dyson LJJ; 25 May 2006) [2006] FLR (forthcoming)

The judge divided assets of £6.3m: 57% to the wife and 43% to the husband. The wife's share included her pension of £100,317 and the husband's share included his pension of £940,490. The husband argued that this outcome was not fair, because pensions in payment were different in kind to other assets and should have been apportioned.

There were obvious distinctions between a technical value ascribed to a pension in payment and a market value ascribed to a realisable asset such as a freehold, a portfolio of shares or a work of art. In dividing the available assets between the parties, the judge had ignored the essential differences between saleable property and an income stream derived from an inalienable pension in payment. Leaving the husband with the vast majority of the pension in payment as a major share of his property had not been fair. The court should have made a pension sharing order, so that the couples pension rights were divided 57% to the wife and 43% to the husband, with consequential adjustments in the division of the other assets, so that they too were shared 57% to the wife and 43% to the husband.

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