For many separating couples, pensions represent one of the most valuable assets in a divorce. Pension Sharing Orders (PSOs) are commonly used to ensure fair division of retirement pots. But what happens when one party refuses to cooperate with implementing the PSO after it has been approved by the court?
A recent case, AP v TP [2024], provides important clarification on how the courts can respond when the implementation of a PSO is deliberately frustrated. This judgment reinforces the court's ability to intervene - even after Decree Absolute - under what is known as the Thwaite jurisdiction.
At Coles Miller, we believe this decision carries practical significance for both clients and family law professionals, especially in complex or contested financial remedy cases.
Background of the case
A settlement impeded by non-cooperation
The case AP v TP involved a divorcing couple who had agreed a consent order in April 2023, which included a PSO, granting the respondent 48.94% of one of the applicant’s pensions (valued at £193,000). Although approved by the court, the order was never implemented.
The respondent persistently failed to provide the information required by the pension provider, despite repeated reminders, legal correspondence, and court intervention. As a result, the applicant - aged 70, in poor health, and approaching retirement - was left unable to access a significant part of his pension income.
He initially sought to vary the PSO to 0%, but this was no longer procedurally possible under section 31(2)(g) of the Matrimonial Causes Act 1973, as the Decree Absolute had already been issued. With the traditional route of variation closed, the applicant turned to the court's inherent power under Thwaite v Thwaite, to set aside executory financial orders where implementation has been frustrated.
What did the court decide?
The court concluded that the PSO should be set aside entirely, unless the respondent complied within a final 28-day window. It held that:
- The PSO was executory (i.e. not yet implemented), and
- The respondent's repeated and deliberate refusal to cooperate made enforcement inequitable.
The judge referred to the principles in Thwaite v Thwaite [1981] and Bezeliansky v Bezelianskaya [2016], highlighting that the respondent's obstruction amounted to a material change in circumstances. Her conduct caused substantial prejudice to the applicant, who remained financially constrained as a result.
Although setting aside the PSO deprived the respondent of a valuable pension benefit, the court determined that this was a just outcome given her repeated non-engagement. A costs order was also made against the respondent, reflecting her failure to cooperate - but reduced to account for some procedural missteps made by the applicant.
Importantly, the court did not set aside the clean break order that had been agreed as part of the financial settlement. It emphasised that while clean breaks prevent future financial claims, individual elements of an order - such as executory PSOs - can still be subject to the court’s discretion where enforcement is frustrated.
Why does this matter? key takeaways for clients and legal professionals
This case offers valuable lessons for anyone involved in financial remedy proceedings:
- Thwaite jurisdiction provides a lifeline
Where variation is no longer possible (e.g., after Decree Absolute), the Thwaite jurisdiction provides an important alternative for redress - especially in cases of non-cooperation.
- Implementation matters just as much as agreement
Even a carefully negotiated and approved PSO is vulnerable if not properly implemented. Early and proactive management of PSOs is essential to avoid delay and disputes.
- Clean breaks are not absolute shields
While clean break orders usually prevent further financial claims, this case confirms that the court can still set aside executory elements without reopening the entire order.
- Client conduct has cost consequences
Non-compliance can lead not only to loss of entitlement but also to significant costs orders. Clients must understand their responsibilities and the legal risks of delaying or frustrating implementation.
- Timing is critical
Practitioners must carefully consider when a variation application can be made. After the Decree Absolute, the court's ability to vary a PSO under MCA 1973, s.31(2)(g) falls away. At that point, equitable relief may be the only remaining option.
In a nutshell: key takeaway for clients:
Finalising divorce is not the end
AP v TP makes clear that even after a financial settlement is agreed, ongoing action is often needed to make that settlement a reality.
From a Wills and estate planning perspective, this means:
- Ensuring your Will reflects the finalised (and implemented) financial orders
- Confirming your pension nominations are up to date
- Understanding that delays in implementing court orders can have real consequences, even after death.
How Coles Miller solicitors can help
At Coles Miller, our Family Law team has extensive experience advising clients on pension sharing orders, clean breaks, and the enforcement of financial remedy orders. We are committed to ensuring that clients receive the full benefit of their settlements -and are protected against the kind of procedural pitfalls highlighted in AP v TP.
We are here to help if you are:
- Dealing with a non-cooperative ex-spouse,
- Concerned about enforcing a financial remedy order,
- Unsure whether you can vary an existing PSO, or
- Navigating the timing and technicalities of post-divorce pension claims/orders.
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