Lisa Holden – Solicitor/ Mediator. Head of our Family Mediation Team/ Military Personnel Divorce Specialist
Military Personnel and Divorce
Any member of the Armed Forces will be aware of the complexities which surround serving your country.
This is even more difficult when you face a relationship breakdown. At Ian Walker Family Law and Mediation, we offer specialist legal advice to active or retired personnel. Our team includes Solicitor and Mediator, Lisa Holden – who has over a long period developed a specialism in representing military personnel with Divorce. Lisa can either assist as a solicitor with representation and advice, or as a neutral mediator, Lisa can assist the couple to negotiate their own settlement.
Understanding the extra pressures on Military Personnel
We understand how military life can impact on family relationships and can best advise and represent your interests.
Divorce is nearly always a stressful and upsetting time for everyone involved. It is made even more so if you are facing a break up when you are on tour or stationed away from the family.
We can offer advice and support you through the difficult issues concerning your finances or children. We can help you by advising you with our expertise and negotiating a settlement which meets your needs.
Divorce settlements have to take into account a wide range of issues such as maintenance payments which can be for your ex wife or husband as well as for your children. You also need to work out how to divide savings and other capital, how to deal with debts, sharing pension schemes and sharing property.
We can assist you with separation, Military Personnel Divorce, arrangements to see your children and financial arrangements. We can offer expert advise in relation to your Armed Forces pension and how it can be treated, whether dividing by a pension sharing order, or offset against an interest in property or savings.
Call our experienced Family Law Solicitors, Divorce Lawyers or Mediators now
Acting for military personnel who are based overseas or a distance from our offices
We can offer appointments by video call so you can contact us from wherever you are serving and can if required, work remotely with you so you are not disadvantaged wherever you may be.
A side-effect of the coronavirus pandemic has been the widespread adoption of videoconference technology. This makes it much easier to assist clients who are a distance from our offices (whether overseas or in the UK).
Since March 2020 most routine (but still important) Court Hearings have been by videoconference and family mediation is now routinely conducted by videoconference. This also makes it much easier for military personnel to engage in family mediation and any subsequent court process. This is use of technology is clearly here to stay.
As a practice, we were already well on the path to paperless working and adopting the full range of technologies to enable us to act for clients at a distance. All of our client engagement including taking ID and collaboration on documents and forms can all now be done at a distance. As a progressive practice we are always looking to enhance our platform – as we evaluate and adopt further enhancements to tech platform – this will only improve our ability to provide outstanding client care for clients who are a distance from our offices. This this said
This said, we have locations across the south-west and not far from the military bases at 40 Commando, Norton Fitzwarren; Royal Marines, Lympstone; Royal Naval Air Station, Yeovilton; Royal Navy, Plymouth and the British Army at Bovington Camp.
Armed Forces Pensions in divorce – An explanation
The UK claims to have one of the most generous pension schemes in the world for members of the military services.
The pension is non contributary and index linked so that it increases each year in line with inflation measured by the Consumer Prices Index.
Armed Forces Pensions are subject to division on divorce like any other pension. How the pension will be divided will be decided by the family court during divorce proceedings. More often, divorcing parties will negotiate and reach agreement as to how the pension is to be divided and send their agreement to the court for approval.
What happens on Military Personnel Divorce
The courts have the power to deal with pensions in three ways:-
Pension Sharing Order (PSO).
This is by far the most common way in which a pension is shared. A PSO requires some or all of the member’s pension to be transferred to the former spouse or civil partner, who will then become a member of the Armed Forces Pension Scheme in their own right.
This is where the value of the pension or part of the pension is offset against another asset such as a property or savings belonging to the divorcing couple.
Attachment Order (AO)
This is now rarely used. It requires payment from the member’s pension benefits ( which can include the pension lump sum) to start immediately upon implementation of the Order. However it will stop on the remarriage of the recipient or the death of the member. With an AO, the receiving party will never become a member of the Armed Forces Pension Scheme.
Where to start
The first step is to obtain a valuation of the pension benefits from Veterans UK. There will be a charge and usually a 6 week or so wait. The valuation is valid for one year.
It is extremely important to get legal advice from a lawyer who understands Army pensions. They may well advise obtaining an Actuary to provide a report to evaluate the pension and set out what any suggested pension share would look like in terms of payment. Actuaries are not cheap, costing around £1,500 to £2,000 plus vat, nor are they quick – generally around 3 to 6 months. However without such a report, either or both parties could lose significantly more by attempting to divide the pension without proper evaluation.
Whilst the Armed Forces provide detailed information for personnel considering divorce, they are unable to provide legal advice. Divorce courts make decisions on financial issues accompanying divorce regardless of whether one spouse is a serving member of the UK military or both.
Legal advice is costly, but trying to divide or offset pension assets without professional advice is a dangerous path to follow and can cost a lot more in the long run.
Trips and Traps
Although a member of the Armed Forces maybe in receipt of their pension, the receiving spouse will not receive their pension share under a PSO until they reach retirement age within the scheme. This can create the ‘income gap’ problem. For example, a 44 year old man who has served 22 years and retired from the Army with his full pension divorces from his 44 year old wife. After the PSO, she will not receive any benefit until she is 55 or possibly older, yet the member’s pension fund will be depleted by the impact of the PSO immediately upon the order being implemented.
Early Departure Payments (EDP) are separate to the Armed Forces Pension. These can be made to personnel who leave the forces between the ages of 40 and 55 and have served for at least 18 years.Although they are not part of the army pension and cannot be divided under a pension sharing order, they can be taken into account as an asset when the overall assets are being considered and offset.
Armed Forces pensions are difficult to value. The CEV provided by the forces pension service, is considered to be a lower value than what the same pension with all its benefits, would be in the private sector. It is therefore risky to rely on the valuation provided by the army for offsetting purposes. Only an actuary will be able to conduct a thorough investigation of the pension and recalculate its true value.
Contrary to popular belief, it is not the law that only the pension which accrued in the years in which the serving member was married or cohabiting and then married, is subject to division. The court has the power to share between 1% to 100% of the pension, regardless of when it was accrued. The percentage share will depend on all the circumstances of the case.
Once a PSO has been ordered by the court and taken effect, it cannot be restored if for example the recipient dies shortly after the Order is made.
There are three types of Army Forces Pensions Schemes (AFPS)
The AFPS 75 was introduced in 1975 and was closed to new entrants or service personnel who re-joined after 5 April 2005
AFPS 05 is a scheme which applies to those who joined or re-joined from 6 April 2005 to 31 March 2015. Members who were part of the 75 scheme were given the option to transfer to AFPS 05 up to 6 April 2006.
AFPS 15 was introduced on 1 April 2015 for new entrants or for re-joiners after 1 April 2015. On 1 April 2015, members of the AFPS 75 and AFPS 05 without transitional protection were automatically transferred to the AFPS 15 scheme.
Transitional protection applied to those who had 10 years or less to serve to reach their service normal pension age as of 1 April 2012.
The amount of pension generally depends on rank and the length of service of the individual member.
If you joined the service between 1975 and 5 April 2005, your pension is payable to you when you turn 60.
If you joined the Armed Forces after 6 April 2005 you will automatically be a member of AFPS05 unless you opted out. Under the AFPS05 scheme, your pension is also payable when you are 60 and the amount will depend on your length of service and final salary.
If a member receives an EDP, this will be paid by way of a lump sum and monthly income from the date the member leaves the forces until they reach retirement age. For members of the AFPS05 scheme, this is based on a percentage of the pension which has accrued. Therefore making a pension sharing order can have an affect on the EDP and reduce it.
Other payments which are excluded include the Armed Forces Attributable Benefits Scheme, the War Pension Scheme or the Armed Forces Compensation Scheme as none of these are pension benefits.
The Courts can also order a percentage of the Death in Service benefit or Death in deferment lump sum to be paid to the ex spouse, regardless of whether someone else has been nominated to receive it.
Reserve Forces Pension Scheme (RFPS 05)
If you started or restarted full-time service in the Reserve Forces after 6 April 2005, you will be a member of the Reserve Forces Pension Scheme (RFPS 05) unless you have chosen to opt out. You will qualify for this scheme if you have served in the Territorial Army, Royal Naval Reserve (RNR) or the Royal Marines Reserve (RMR).
To obtain the most up-to-date information on your military pension entitlement, contact the Pensions Division of the Service Personnel and Veterans Agency at Mail Point 480, Kentigern House, 65 Brown Street, Glasgow, G2 8EX or phone 0800 085 3600.
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