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Transaction Avoidance in Insolvencies$
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Rebecca Parry, James Ayliffe, Sharif Shivji, Hamish Anderson, and William Trower

Print publication date: 2018

Print ISBN-13: 9780198793403

Published to Oxford Scholarship Online: March 2021

DOI: 10.1093/oso/9780198793403.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use.date: 16 May 2022

Pensions (Bankruptcy Only)

Pensions (Bankruptcy Only)

(p.364) 14 Pensions (Bankruptcy Only)
Transaction Avoidance in Insolvencies

James Ayliffe

Oxford University Press

A category of asset that requires separate consideration is the debtor’s pension. A need for transaction avoidance may arise here if the bankrupt has made excessive contributions to his pension in a bid to deprive creditors of these sums. Although formerly a problem, due to the inadequacy of existing avoidance provisions, case law developments meant that such tactics by the bankrupt were to no avail. This area of law is now primarily governed by the Welfare Reform and Pensions Act 1999, the material parts of which came into force on various dates, the earliest being 29 May 2000. Provisions of this Act dictate that the debtor’s entitlements under approved pension arrangements do not form part of the debtor’s estate in bankruptcy. Rights under pension schemes that are not approved are also exempted by regulation. In each of these cases the trustee is, however, able to apply for an order to set aside any excessive pension funding. Relevant case law principles will still govern the affairs of those who were adjudged bankrupt prior to 29 May 2000, and so they are considered in this chapter also. A diagram explaining the various applicable rules appears at the end of the chapter.

Keywords:   approved pension arrangements, excessive contributions, forfeiture, income payments order, no forfeiture, pension-sharing arrangement, statutory pension schemes, unapproved pension arrangements

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