S.I. No. 64/1997 - Occupational Pension Scheme (Family Law Act, 1995) Regulations, 1997

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) the payment to be made pursuant to section 12 (9) of the Act of 1995 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 6CONTINGENT BENEFITS

42 General

42.

42. Where an order is made under section 12 (3) of the Act of 1995, 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.

43. For the purposes of section 12 (3) of the Act of 1995 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.

44. For the purpose of section 12 (3) of the Act of 1995 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.

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.

46. Where an order has been made under section 12 (3) of the Act of 1995, 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 7CALCULATION UNDER SECTION 12 (25)

47 General

47.

47. (1) Pursuant to a direction of the court under section 12 (25) of the Act of 1995 the calculation of the value and amount of the retirement benefit and 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.

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.

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.

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 30th day of January, 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 30th day of January, 1997.

MERVYN TAYLOR

Minister for Equality and Law Reform

EXPLANATORY NOTE

The Family Law Act, 1995 provides under section 12 that the court may make a pension adjustment order on or following the grant of a decree of judicial separation. Section 5 (4) of the Pensions Act, 1990 (as inserted by section 4 of the Pensions (Amendment) Act, 1996 ) provides for Regulations to be made specifying guidelines for the purpose of section 12 of the Family Law Act, 1995 . 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) and the amounts referred to in section 12 (25) of the Act, of 1995.

The Regulations come into force on the 31st day of January, 1997.