The Lord Chancellor will face tremendous pressure this week to amend the Family Law Bill to allow pension splitting at the time of divorce if the House of Lord s comes to a vote on it at the report stage (see [1995] Gazette, 21 February, 2).

Meanwhile the Pensions Act 1995, which was amended after opposition from the government to provide for deferred maintenance, or 'earmarking', has still not come into force and is unlikely to do so before July.

These changes, and the raging debate about the best way of taking pension rights into account, have raised serious problems.

These include concerns that 'earmarking' will not achieve a clean break at the time of divorce, that the member's spouse will have no control over the date at which the pension becomes payable, and that there will be no benefit payable at all if the scheme member does not survive to draw the pension.In England and Wales the current matrimonial law does not require pensions to be included when assets are divided between the former spouses, although pension rights may sometimes be taken into account.

Even where pension rights are taken into account, the divorcing couple's other assets may not be sufficient to permit an equitable division of all assets without splitting or reallocating pension assets in some way.

An additional problem is that the court has no powers over pension scheme trustees or personal pension providers to order the splitting of pension rights.Also, as the law currently stands, the assignment of pension benefits arising from Inland Revenue approved schemes is expressly forbidden.

In addition there is no guidance on the method or basis to be used for the valuation of on-going pension rights.

Other problems are that in the rules of most occupational schemes, the definition of dependant does not include a former spouse and that some benefits from occupational and personal pension schemes may be disposed of under the discretionary powers of the scheme trustees.

The court has no powers to direct the trustees in the exercise of those powers.The inexactitude of the science of pension rights valuation is a hindrance to the courts' acceptance of the need to consider pension rights and may delay and hamper settlement.

With pension benefits of the 'final salary' type, the valuation of the accrued rights has been the subject of much changing of legislation in recent years, particularly in relation to pension transfers.

However, there is still scope for interpretations of guidelines which may leave opposing sides with widely differing assessments of the value of accrued rights.For example, an expert might or might not make a case for discretionary increases to pensions currently being paid to one of the spouses to be taken into account.

There is also the possibility that the scheme itself may be in deficit or in surplus and this may affect the assessment of value of the individual member's accrued rights in that scheme.

Even with defined contribution schemes there is scope for different interpretations.

With some pension arrangements operated by insurance companies a request for a 'current value' may elicit as many as three different answers according to the question being asked.

Additionally, the value of equity-linked pension funds can change in such a way that one party may feel either aggrieved or pleased depending on whether a value was taken at a time when the markets were over or under-valued.In any pension scheme, the right to benefits accrues gradually with years of service -- defined benefit scheme -- or with the growth of the individual pension fund -- defined contribution scheme -- and does not suddenly crystallise at the point of retirement, so that those rights would be building up during the ma rriage.In this respect, the building up of a pension fund should be seen as no different from the setting aside out of current earnings funds which create other assets such as share portfolios.

It may therefore be that the courts will in future be less likely to perceive pension benefits as 'remote'.There are, of course, contingencies such as death, long term sickness and future unemployment which may have the effect of diminishing the present value of any future pension benefit.

However, if these contingencies are to be considered, the value of the husband's other benefits might properly be brought into the calculations as well.

For example, the value to a wife of her husband's death-in-service life assurance cover is usually very significant.

It does not seem equitable to reduce the value to her of a future pension benefit on account of the contingency of the death of the husband without, at the same time, replacing the value of the death-in-service life cover in some way.It is extremely important to consider the value of pension rights in divorce cases and each situation has to be considered in the light of specific pension arrangements and accumulated rights of divorcing spouses.

In the coming months and years there are likely to be legislative changes designed to enable courts to deal more easily with valuable pension rights in divorce cases hopefully making the task of the matrimonial lawyer simpler.