Pension Sharing - Take Care

A wife whose divorce settlement included a share of her husband's army pension rights recently faced disappointment in the court when she failed in her bid to be able to receive pension payments before she reached the age of 60.

Her ex-husband had retired at the age of 58, under the Armed Forces Pension Scheme, when his wife was 55. In the divorce settlement, he was ordered to pay her a lump-sum, sign over to her the ownership of a flat and to transfer to her half of his pension rights.

The pension attaching to the pension rights transferred to the wife could not be taken until the age of 60, as was pointed out to her. She claimed that this was unfair for a variety of reasons, the main one of which was that the entitlement to enjoy her pension rights was withheld from her on the grounds of gender or her status as an ex-wife and that this constituted discrimination.

The decision turned on the issue of who owned the pension rights at the time the transfer of rights was made. The court held that the rights had at all times been the exclusive property of the husband, the ex-wife acquiring these when the pension-sharing agreement was made. She had argued that her contribution to the marriage was such that the rights were owned jointly. This would have given weight to the discrimination argument had it been accepted by the court, but it was not.

The fact that she could not benefit from the pension rights until the age of 60, whereas her husband could take his pension at 58, was discriminatory, but the Court of Appeal found that the Secretary of State had made a compelling justification for the discrimination.

The ex-wife therefore had to wait until she reaches 60 years of age to receive her pension.