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


S.I. No. 64 of 1997.

OCCUPATIONAL PENSION SCHEME (FAMILY LAW ACT, 1995) REGULATIONS, 1997

ARRANGEMENT OF ARTICLES

PART 1

PRELIMINARY

1. Citation.

2. Commencement.

3. Definitions.

PART 2

CALCULATION OF DESIGNATED BENEFIT

4. General.

5. Pension Adjustment Order.

6. Determination of type of pension scheme.

7. Defined Benefit Scheme — Active member — Calculation of designated benefit at normal pensionable age.

8. Defined Benefit Scheme — Active member — Calculation of designated benefit on retirement earlier than normal pensionable age.

9. Defined Benefit Scheme — Enhanced retirement benefit payable prior to normal pensionable age due to ill-health.

10. Defined Benefit Scheme — Active member — Calculation of designated benefit on retirement later than normal pensionable age.

11. Defined Benefit Scheme — Active member — Calculation of designated benefit on retirement having previously withdrawn from reckonable service.

12. Defined Benefit Scheme — Deferred pensioner — Calculation of designated benefit.

13. Defined Benefit Scheme — Current pensioner — Calculation of designated benefit.

14. Defined Benefit Scheme —Improvements and reductions in retirement benefit.

15. Defined Contribution Scheme — Active member — Calculation of designated benefit at retirement.

16. Defined Contribution Scheme — Active member — Calculation of designated benefit at retirement having previously withdrawn from reckonable service.

17. Defined Contribution Scheme — Deferred pensioner — Calculation of designated benefit.

18. Defined Contribution Scheme — Current Pensioner — Calculation of designated benefit.

19. Defined Contribution Scheme — Insufficient information to accurately identify and calculate the accumulated value.

20. Additional Voluntary Contributions.

21. Retirement Benefit Provided in respect of a transfer of accrued rights from another pension scheme.

22. Defined Benefit Scheme switches to defined contribution basis.

23. Defined Contribution Scheme switches to defined benefit basis.

24. Calculation of designated benefit following previous order.

PART 3

CALCULATION OF RESIDUAL BENEFIT

25. General.

26. Retirement Benefit — Defined Benefit Scheme.

27. Retirement Benefit — Defined Contribution Scheme.

28. Contingent Benefit.

PART 4

TRANSFER AMOUNTS

29. General.

30. Transfer following an application from the non-member spouse.

31. Calculation of Transfer Amount — Defined Benefit Scheme.

32. Calculation of Transfer Amount — Defined Contribution Scheme.

33. Application of transfer amount.

34. Transfer initiated by Trustees.

PART 5

PAYMENT OF DESIGNATED BENEFIT

35. General.

36. Pension Increases.

37. Exercisable Options.

38. Benefits on death of a non-member spouse following commencement of designated benefit.

39. Termination of reckonable service of member spouse.

40. Death of member spouse prior to commencement of designated benefit.

41. Death of non-member spouse prior to commencement of designated benefit.

PART 6

CONTINGENT BENEFITS

42. General.

43. Termination of relevant employment.

44. Temporary Absence.

45. Specific Definitions.

46. Effect of Order.

PART 7

CALCULATION UNDER SECTION 12 (25)

47. General.

48. Retirement Benefit — Defined Benefit Basis.

49. Retirement Benefit — Defined Contribution Basis.

50. Contingent Benefit.

S.I. No. 64 of 1997:

OCCUPATIONAL PENSION SCHEME ( FAMILY LAW ACT, 1995 ) 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), hereby makes the following Regulations:

PART 1 GENERAL

1 Citation

1. These Regulations may be cited as the Occupational Pension Scheme ( Family Law Act, 1995 ) Regulations, 1997.

2 Commencement

2. These Regulations shall come into operation on the 30th day of January, 1997.

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 ;

"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 notional 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, 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;

"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 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 pensions 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 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 possibly 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, 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;

"pension scheme" means

( a ) an occupational pension scheme (within the meaning of section 2 (1) of 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 and the amount of payment made under section 12 (7) of the Act of 1995;

"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);

"transfer amount" shall be construed in accordance with section 12 (4) of the Act of 1995;

"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 2CALCULATION OF DESIGNATED BENEFIT

4 General

4. (1) Where an order is made under section 12 (2) of the Act of 1995 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, 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) reference 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:

(AxBxP) / 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 V(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 member 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 benefitpayable from that pension scheme shall be reckonable service, calculated in accordance with this article provided that where the member spouse's 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 the 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 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 H 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 inpension 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 anydesignated 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 at 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 x L x P) / M

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 3CALCULATION 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) and deduction from contingent benefit pursuant to section 12 (16) of the Act of 1995 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

(ii) a payment pursuant to section 12 (9) or section 12 (10) the Act of 1995

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 a payment pursuant to section 12 (9) or section 12 (10) of the Act of 1995), 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) or section 12 (6) or section 12 (8) of the Act of 1995 or a payment pursuant to section 12 (9) or section 12 (10) of the Act of 1995), 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 4TRANSFER AMOUNTS

29 General

29. A transfer amount pursuant to sections 12 (5), 12 (6) or 12 (8) of the Act of 1995 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, 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 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 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 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, 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, 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, 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 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 as at the date of receipt of a valid application 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, 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) (I) of section 12 (8) of the Act of 1995 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, 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 5PAYMENT OF DESIGNATED BENEFIT

35 General

35. Unless otherwise specified in the Act of 1995, 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 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), the payment to be made pursuant to section 12 (7) of the Act of 1995 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) 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. 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. 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. 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. 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, 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. (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. 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 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.