Pension sharing

R (Smith (Susan)) v Secretary of State for Defence [2004] EWHC 1797 (Admin)

In the applicant’s divorce proceedings a pension sharing order had been made under which she received half of the value of her husband’s rights under the Armed Forces Pension Scheme. At the time of their divorce in 2003 her husband was 59 and had retired from the army in 2002 and claimed his pension from that date, while the wife was 56. The managers of the scheme had decided that there was no power for her to receive payment from her half of her husband’s pension before she was 60. The wife therefore applied for a declaration that ss101C(l) and 101B of the Pension Schemes Act 1993 violated her human rights. Although the judge held that the sections did not violate her right to peaceful enjoyment of her possessions under article 1 to the European Convention on Human Rights, nor did they violate her right to respect for family life under article 8, the provisions did fall within the ambit of those articles and therefore the wife had a right under article 14 to enjoy her rights under such articles without suffering discrimination on the grounds of gender, status or as an ex-wife. The provision did differentiate directly on the grounds of age and indirectly on the grounds of gender, because the pension credit member (usually the wife) has to wait for payment until age 60, even in circumstances where the active member is receiving or will receive his pension prior to 60. The judge then considered whether the Secretary of State could establish objective and reasonable justification for the impugned provision. The main purpose behind the pension sharing legislation was to free pension credit rights from links with the circumstances of the active member and to render them apt to the circumstances only of the pension credit member. It simply did not follow that, because the circumstances of the active member are such that he or she can draw a pension prior to age 60, the circumstances of the pension credit member will be such that she or he should also be enabled to do so. Accordingly he held that there was an objective and reasonable justification for the provision and found against the wife.