I am writing on behalf of an acquaintance, who is extremely busy at the moment and, in any case, struggles with paperwork and the complicated legalities of divorce.
The husband (let's call him H) is a Canadian citizen, and the wife (let's call her W) is had dual British and Canadian citizenship, and is now a resident of Great Britain. They were married in St Lucia in 1990, and separated very amicably in 2011. They lived in the province of Ontario for the duration of the marriage, and W returned to the UK upon the separation. They have one adult daughter in Canada. Upon separation, the marital home was sold and the assets split, and H pays W £500 (GBP) in spousal maintenance on a monthly basis until W co-habits with a new partner, as outlined in their Separation Agreement. Both parties remain beneficiaries of one another's life insurance policies (both worth $250,000 (CAD)). W will withdraw most of her Canadian pension to contribute towards a mortgage on her new home in England, so H does not stand to inherit anything; H is happy to keep W as the beneficiary of his pension, as both parties have decided resolutely against splitting the pension at this stage, as it would drive H out of his new home and, in any case, they agreed that it would be unfair for W to take a hefty chunk of H's hard-earned pension.
Now, the former couple has started to discuss a divorce. The problem that has arisen is that W will not be entitled to H's pension if they divorce. Is it legally possible for H to still name W as the beneficiary of his OMERS pension if they divorce? Could H still name W as the beneficiary of his OMERS pension if he later remarries? I have done a lot of searching, and there seems to be no mention of whether a pension holder can willingly name his/her ex-spouse as beneficiary.
In the event that H is not legally permitted to name W as his beneficiary upon divorce, both parties would be happy to remain separated, rather than divorced, if it is easier. H would be the petitioner of the divorce, and is worried about the costs, which he has estimated as around $8,000. H is also religious, so in some ways a separation is preferable, although he would not object to divorcing W if W asks for this.
There are further issues, however. Their Separation Agreement, which was drawn up in Canada, is not legally enforceable in the UK. English courts may indeed take such an Agreement into consideration when dealing with finances upon divorce, as it is a good indicator of both parties' agreed intentions, but they are not bound by it and could throw it out without an issue. It is not valid by itself. On the other hand, English law has a process of legal separation called a Judicial Separation, which is rarely sought these days, but which is very similar to a divorce in its practicalities (it automatically negates provision for the estranged spouse from a will, for example, just as divorce does). The benefit of a judicial separation is a continued entitlement to a survivor's pension. A judicial separation would cost just under £1,000 (GBP) (roughly $1,600 (CAD), which is much less than a divorce). There is, however, no such concept of legal separation in Canadian law, which is another obstacle.
Now, I am vaguely aware of something called a conflict of laws (lex fori, lex causae, lex loci contractus, and so on), which arises when dealing with an international or interjurisdictional case. If it is not possible for H to keep W as his pension beneficiary following a divorce, would it be possible for Canadian lawyers to force the English courts to recognize the Separation Agreement? Alternatively, would it be possible for the UK lawyers to force the Canadian courts to recognize an English judicial separation? Which of the two would be preferable (I am assuming the first option would be quicker and easier, as a Canadian Separation Agreement has already been created and the pension issue in question relates to Ontario, not Britain)? I am aware than maybe an experienced Notary Public would be better disposed to answer this. How I go about advising my acquaintance will depend, first and foremost, on whether W will still be entitled to a survivor's pension upon divorce if H specifies so.
Sorry for the length of the post, but I thought it necessary to get absolutely everything relevant written down. All help will be much, much appreciated. Many thanks in advance.
The husband (let's call him H) is a Canadian citizen, and the wife (let's call her W) is had dual British and Canadian citizenship, and is now a resident of Great Britain. They were married in St Lucia in 1990, and separated very amicably in 2011. They lived in the province of Ontario for the duration of the marriage, and W returned to the UK upon the separation. They have one adult daughter in Canada. Upon separation, the marital home was sold and the assets split, and H pays W £500 (GBP) in spousal maintenance on a monthly basis until W co-habits with a new partner, as outlined in their Separation Agreement. Both parties remain beneficiaries of one another's life insurance policies (both worth $250,000 (CAD)). W will withdraw most of her Canadian pension to contribute towards a mortgage on her new home in England, so H does not stand to inherit anything; H is happy to keep W as the beneficiary of his pension, as both parties have decided resolutely against splitting the pension at this stage, as it would drive H out of his new home and, in any case, they agreed that it would be unfair for W to take a hefty chunk of H's hard-earned pension.
Now, the former couple has started to discuss a divorce. The problem that has arisen is that W will not be entitled to H's pension if they divorce. Is it legally possible for H to still name W as the beneficiary of his OMERS pension if they divorce? Could H still name W as the beneficiary of his OMERS pension if he later remarries? I have done a lot of searching, and there seems to be no mention of whether a pension holder can willingly name his/her ex-spouse as beneficiary.
In the event that H is not legally permitted to name W as his beneficiary upon divorce, both parties would be happy to remain separated, rather than divorced, if it is easier. H would be the petitioner of the divorce, and is worried about the costs, which he has estimated as around $8,000. H is also religious, so in some ways a separation is preferable, although he would not object to divorcing W if W asks for this.
There are further issues, however. Their Separation Agreement, which was drawn up in Canada, is not legally enforceable in the UK. English courts may indeed take such an Agreement into consideration when dealing with finances upon divorce, as it is a good indicator of both parties' agreed intentions, but they are not bound by it and could throw it out without an issue. It is not valid by itself. On the other hand, English law has a process of legal separation called a Judicial Separation, which is rarely sought these days, but which is very similar to a divorce in its practicalities (it automatically negates provision for the estranged spouse from a will, for example, just as divorce does). The benefit of a judicial separation is a continued entitlement to a survivor's pension. A judicial separation would cost just under £1,000 (GBP) (roughly $1,600 (CAD), which is much less than a divorce). There is, however, no such concept of legal separation in Canadian law, which is another obstacle.
Now, I am vaguely aware of something called a conflict of laws (lex fori, lex causae, lex loci contractus, and so on), which arises when dealing with an international or interjurisdictional case. If it is not possible for H to keep W as his pension beneficiary following a divorce, would it be possible for Canadian lawyers to force the English courts to recognize the Separation Agreement? Alternatively, would it be possible for the UK lawyers to force the Canadian courts to recognize an English judicial separation? Which of the two would be preferable (I am assuming the first option would be quicker and easier, as a Canadian Separation Agreement has already been created and the pension issue in question relates to Ontario, not Britain)? I am aware than maybe an experienced Notary Public would be better disposed to answer this. How I go about advising my acquaintance will depend, first and foremost, on whether W will still be entitled to a survivor's pension upon divorce if H specifies so.
Sorry for the length of the post, but I thought it necessary to get absolutely everything relevant written down. All help will be much, much appreciated. Many thanks in advance.
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