Zoe Hewines from The Family Law Company explains what you need to know about your position if youíve decided to get divorced.
The breakdown of a marriage or civil partnership is a difficult time for anyone, even if it’s done amicably. Unsurprisingly it’s one of the top five most stressful life events people go through. For someone in the military there are particular issues and obstacles to negotiate, although the mechanics of the process are very similar to a civilian divorce.
Areas to consider include living and contact arrangements if you have children, your military pension and what happens to it on divorce, Service Family Accommodation, plus allowances for boarding school fees if relevant.
Undoubtedly the biggest contention in a military divorce is when a couple has children. In general, after a separation the non-service member, still most often the wife, will have primary care of the children and return to their home town; of course, this may not be the service member’s home town.
Although fairly unusual, it is possible for a service member to have primary care, and, depending on individual circumstances, this option could actually offer a more stable outcome for the children. Potentially a service member can ask for a longer posting based on welfare grounds, which will help make this more achievable. If this is something you’re considering, it’s useful to engage with your military welfare services for support and assistance.
While an agreement can often be achieved without having to go to court, you may prefer to have a legal Child Arrangement Order (CAO) put in place, just in case. Remember that there will be costs and court fees to pay, but if anything does go wrong in the future, your contact will be protected.
Although it might not be practical to have children at weekends, for most service members the school holidays work well, especially as many units get block leave during the summer and at Christmas. Outside of this, you can take leave at a convenient time for the children and the other parent, unless something happens duty-wise that means you can’t take time off.
However, if the children are at boarding school then both parents can only see the children during school holidays. So this will need to be factored in to any arrangements you agree.
Keeping contact going when a service member is away serving abroad, for example, needs some planning. If children need to travel overseas then their ages will need to be considered. Airlines have different rules; some allow parents to request an unaccompanied minor service, and there are also professional chaperones who can step in. Ultimately, this shouldn’t prevent contact – it just needs to be thought through.
Unfortunately, it isn’t unusual for service members to have little regular contact with their children, which can lead to estrangement. So if you want to maintain a relationship you’ll have to put effort in. There are ways and means, even when distance is an issue. Facetime is a good tool, and if you have a young child you might like to set a regular time to read them a bedtime story. Zoom offers free 40 minute face to face sessions, and haptic watches can remind your child that you’re thinking of them. If you’re in an inaccessible area, a handwritten letter is a traditional, straightforward way of staying connected.
The intricacies of a military lifestyle on top of a relationship breakdown can make child arrangements and contact difficult for a service member. Remember that if you try to stay amicable with your ex-spouse from the start, then the chances of a child having a relationship with both parents will be greatly improved.
Divorce and your military pension
In a civilian divorce the home is usually the largest asset, but for a service member living in service family accommodation, it might in reality be their pension. Military pensions can be more complex than private pensions.
The three main military pension schemes are AFPS 1975, AFPS 2005 and AFPS 2015. There’s an extra complication for those who were made to move to the AFPS 2015 from an earlier scheme, as the McCloud judgement of 2022 (which found that the transitional protections provided when reformed public service pension schemes were introduced in 2015 were discriminatory) means that they now have the option to move back. It’s possible that this may affect the pension provision and division on divorce.
As with a civilian divorce, if your former spouse has been unable to work either because of your career or because they have been providing full time care for children, they won’t have a pension. In this case, a financial agreement may require that they receive a portion of your pension. This isn’t the same if they have worked and have their own pension, so long as it isn’t disproportionate.
If you are faced with divorce, you may immediately feel you need to safeguard your pension to secure your own future which could lead you to sacrifice another asset, such as a property, to retain it fully. However, you need to consider whether giving up a percentage of the pension might be a better option than giving up your interest in a property. Taking professional advice will help you to decide what’s best for you.
Likely pension agreements
If you can reach an agreement between yourselves with the advice of a lawyer and pensions specialist you will save time, money and stress. If you are unable to agree, the court can make an order disregarding your viewpoint and you may end up in a situation which neither of you want.
These are the most usual agreements:
You offset your property, or other asset, against any interest in the pension, so you keep the full amount.
A percentage share is transferred to your former spouse who then becomes a member of the AFP. This is permanent, it cannot be cashed in or transferred and you will get nothing back if they die.
Pension attachment (England and Wales)
Your former spouse either receives a monthly payment once the pension is active, or they receive a share of a lump sum on retirement. As a form of spousal maintenance this ends if either of you die or your former spouse remarries.
If you have similar pension pots or your marriage has been relatively short, you can agree to keep your own pensions.
When you live in Service Family Accommodation (SFA) and your relationship breaks down, you will probably move into Single Living Accommodation (SLA). As the service member you will be expected to continue paying the rent on the SFA until your spouse vacates the property, which can be up to 93 days.
Boarding school fees
Such fees are usually incorporated in discussions about child maintenance. If you a responsible for the fees and have agreed to continue paying them, this should be taken into account when child maintenance payments are decided The benefit of using a lawyer with expertise in military divorces and pensions
As there are a number of military-specific issues involved, if you appoint a lawyer with the relevant experience you can feel confident that they understand the intricacies and will get the right result for you.
Your lawyer should have your welfare at heart and will be able to advise you on what support is available. This might include the Forces Pension Society, who will help you decide what is best concerning your pension agreement and, for mental health and wellbeing, the relevant dedicated welfare service.
Zoe Hewines is a Trainee Chartered Lawyer based in Exeter. She is married to a service member.