Divorce can be a challenging and life changing process for anyone who goes through it but for some sections of society there can be added complications and this applies in particular to members of our Armed Forces. Below are some frequently asked questions that might be asked by service personnel who find themselves going through a separation.
Can I start divorce proceedings if I have been posted abroad?
In terms of the first steps towards the dissolution of a marriage then some personnel might be out of the country and might think that they cannot start divorce proceedings until they return home. It is however entirely possible to start divorce proceedings in this country even though you are abroad provided either you or your estranged spouse are still classed as domiciled and/or habitually resident in England or Wales.
Will I have to leave my Service Families Accommodation if my marriage breaks down?
As a married person, you might have been given Service Families Accommodation (SFA). Once it becomes apparent that your marriage has irretrievably broken down, you must inform your unit of the change in your Personal Status Category (PStat Cat). You will then be issued with a Notice to Vacate your SFA within 93 days. This is because an estranged couple do not meet the eligibility criteria to remain living in SFA.
Where will I live after leaving my Service Families Accommodation?
If you want to remain living in your SFA beyond the 93 day limit then you need to complete a Proportionality Form and submit that to the Irregular Occupancies Team. You would need to show some special reason to justify you remaining there a little longer.
Usually, before the 93 day period is up you will move into Single Living Accommodation but bear in mind that you will remain responsible for the SFA accommodation charges for up to 93 days following the date of the change in your PStat Cat. Your estranged spouse will be responsible for the utility bills if they choose to remain living in the SFA after you have moved out but before the end of the 93 days.
There are a number of different options in terms of housing once the 93 day period has expired. You could apply for social housing although in many areas there is a lengthy waiting list. You should check with your local housing authority whether you would be classed as having made yourself intentionally homeless if you leave the SFA before the 93 day period is up.
If you are applying for social housing you should send the local authority a copy of your Certificate of Cessation of Entitlement to Occupy. If you cannot secure anything through your local housing authority and you cannot afford private accommodation then you should be entitled to help and advice under homelessness guidelines. In the event that you have dependent children then the local authority has a duty to secure suitable accommodation for you. This might be in a bed and breakfast or a hostel. Whilst not ideal, this will give you a roof over your head until something more suitable can be found.
You could also try SSAFA/FH Stepping Stones Homes which offer support and assistance including temporary accommodation to separated service personnel and their families.
How can my children spend time with me if I no longer have suitable accommodation?
One difficulty that can be faced by serving personnel following a separation is that they find themselves in accommodation which is not suitable for them to have their children overnight. You can apply for a surplus SFA but there are not many of these available and they might not be in the right area for you. In some areas there are contact/welfare houses available for use but there is no automatic entitlement to suitable accommodation to spend time with your children unless they live with you for most of the time.
What will happen to my Armed Forces Pension if I get divorced?
Very often an Armed Forces Pension is the most valuable asset in the whole case. There are 3 different schemes, the AFPS75, AFPS05 and the AFPS15 all of which have different features. If you do separate, you should ask the Service Personnel and Veterans Agency for something known as a Cash Equivalent Value (CEV) of your particular pension and explain that you need the CEV for use within divorce proceedings. They will send you out a form which you will need to complete and return to them so that they can process your request for the CEV. When you receive the form you will see that you can apply for either a pension forecast which is free of charge or a CEV which will attract a fee. It is important that you ask for the CEV as this is the figure that your Solicitor will need. Note that it can take up to 3 months for this figure to be calculated.
The Armed Forces Pension Scheme is a non-funded scheme which means that once your Solicitor has received your CEV, they should apply for an actuarial valuation with the co-operation of your spouse or their Solicitor. An actuarial valuation of the pension fund will reveal its true value and neither party should merely rely on the CEV as accurately reflecting the value of an Armed Forces Pension. The identity of the actuary and the letter of instruction should be agreed by both parties. Failure to agree on this can result in one party contesting the valuation report and asking for another to be prepared at additional cost.
Once the true value of the pension is known, a list of all the assets can be prepared and you can then look to negotiate a fair settlement. The starting point is often 50/50 but you then have to determine what a fair settlement is in your particular case by considering the welfare of any children and factors such as the needs, income and resources of both of you.
There are a number of options when it comes to dealing with your pension and you will not necessarily need to share it. The options are as follows:
Pension sharing
This is where part of your pension is taken and placed into a separate fund with the Armed Forces Pension Scheme. That separate fund will be in the name of your estranged spouse meaning that you can continue to contribute to your own scheme without the worry that they will make a further claim against its increased value in the future. The pension (and the lump sum if applicable) can be paid from age 55.
Pension attachment
This is where a percentage of your pension benefits are paid to your former spouse. Pension attachment orders are very rare. You would have to pay tax on the whole of your pension and if you die or your ex-spouse remarries the payments to them will stop.
Pension offsetting
This is where you keep your pension intact but your ex-spouse receives more of the other assets to compensate them for the fact that they have received nothing from your pension. An example would be that you retain your pension and your spouse keeps the house (if they are worth similar amounts).This can result in you having very little in terms of immediate access to funds to say, buy a new house, but it does mean that you will retain all of the provision that you have made for your retirement so that hopefully you will be more comfortable at that time in your life.
Is there anything that I should do straight away?
Because of the nature of your job you should seriously consider making a Will. If you were to pass away whilst still married then your spouse will receive any jointly owned property, your personal belongings and the next £450,000.00 of your estate (£250,000.00 if you have children). If you have previously made a Will and you have left anything to your spouse in that Will then you should think about reviewing it as your spouse will still be entitled to that provision under the terms of your Will if you were to pass away before the final divorce has been granted.
You might want to contact the Service Personnel and Veterans Agency to change the nomination for any death in service benefit that is payable if your spouse is presently nominated. You can nominate any person of your choice, perhaps your children or another relative.
If you have a joint account then you should think about closing the account or at the very least you should remove any overdraft facility. If your spouse takes the account up to its overdraft limit or beyond the bank is entitled to pursue either of you separately or both of you together to repay the outstanding amount.
If you own a house that is registered in your joint names you should check whether you hold that property as “joint tenants”. If you do then you should be aware that regardless of what you have said in a Will, if you die before your spouse and you still own that property as joint tenants then your spouse will inherit 100% of the equity in that house. The reverse would apply and if your spouse predeceased you then you would inherit the house. If you want to prevent this rule from operating then you should ask your Solicitor to serve a “notice of severance of joint tenancy” on your spouse. The effect of this will be that you will both own the property as “tenants in common” and you will each be free to dispose of your respective 50% shares under the terms of a Will.
A final word
The issues surrounding divorces for members of the Armed Forces can be complex, especially when it comes to dealing with the pension fund. You should instruct a specialist Solicitor who has experience of dealing with these cases to prevent potential financial loss in the future.
Contact our Divorce Solicitors Birmingham
For more advice on Divorce for members of our Armed Forces, contact our Family Law team on 01212482850;or contact us today using our online enquiry form.