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Divorce and the Armed Forces
Divorce and the Armed Forces
While military divorces are no more complicated that civilian ones, there are special rules and requirements that apply to UK service members and their spouses when they separate. These differences can be related to matters of compliance with child maintenance, service of process, residency or filing requirements, military accommodation and/or the division of military pensions. The following is an overview of the laws that will affect UK service men and women who get a divorce/dissolution of civil partnership.
Nb. All rules set out below re divorce apply equally to a dissolution of a civil partnership.
Can I file for divorce in England and Wales if I’m stationed abroad?
In order to file for divorce in England and Wales you must be able to demonstrate that you are habitually residence and/or domiciled in England and Wales. If you, or your partner, is stationed abroad, whilst the other remains living in England and Wales, then divorce proceedings can be issued here. However, if you are stationed abroad and your partner is a foreign national also living abroad, then you would need to show that you have lived in the UK for at least 6 months prior to the Application being filed.
Please note that if your spouse issues divorce abroad, before you are able to issue here, then this Application is likely to be deemed first in time and thereafter, the matter will be determined on the basis of the laws of that country.
Whilst posted overseas, you can seek guidance from your respective forces’ legal services department who will be able to give provide advice and support (i.e. Headquarters Army Legal Assistance can provide advice on the law in Germany).
- Armed Forces Benefits
In the event that you are receive any family financial assistance/family housing it is important that you give notice of your separation to the unit welfare officer. It is essential to note that, once a spouse vacates family accommodation provided to you for this purpose, that you may lose all associated benefits (although you may be entitled to a ‘cooling off’ period to find alternative accommodation).
If you are married to a service member and your spouse moves out, you will, consequently, also lose access to all associated benefits (i.e. discounts) and the right to remain in military accommodation, which may result in an increase to your regular outgoings.
Once the relationship has come to an end it is important to notify the staff so that any arrangements (eg. accommodation for children completing GCSE’s) can be made, particularly for families making the transition to civilian life.
- Armed Forces Pension
In the case of a military marriage often the most valuable assets accrued during the marriage is the Armed Forces Pension Scheme (AFPS) and/or the family home and consideration should be given to the following when considering whether/how these assets should be dealt with on the breakdown of a relationship. Whilst the value of a pension varies depending on type of fund, length of service, position (and salary) and general economic conditions, pensions with the Armed Forces Pension Scheme are often one of the most valuable assets in the marriage.
Additionally, if you/your partner left the forces during the marriage due to injury and/or disability then the value of any compensation received from War Pensions and Armed Forces Compensation may need to be considered, balanced against the needs arising from the injury and/disability when determining how the matrimonial assets should be shared.
It is essential that financial matters are resolved, where possible, prior the pronouncement of the Final Order in the divorce. Once the Final Order has been has been pronounced, you will no longer be your former spouse/your civil partner’s next of kin and will, therefore, lose all automatic inheritance and pension rights against your estranged partner.
- Family Home
If possible, it is best to agree on how any property is to be distributed between you and, particularly, whether the family home is to be sold (if owned) or, if not sold, who will continue to live there and on what terms.
It is important to consider the needs of any children, the location of the property and future residence of the parties (i.e. particularly if a return from/to overseas is being considered).
In addition, due to the inherent risk to life accompanying military service, all military personnel should, upon separation from your spouse/civil partner put in place/update a will to reflect any changes in how the estate is to be handled, since as stated above, in the event of death prior to a divorce, then the estranged spouse will remain your next of kin.
- Child Maintenance
Whilst the same principles of assessment apply to military personnel as civilians, the military has special rules concerning spousal/child support which are designed to ensure that a service member’s family continue to be supported post divorce/separation. In the event of non-payment, the Welfare Unit may upon a complaint, deduct the obligation at source from the member’s wages.
Child arrangements upon separation
The breakdown of a family unit is a distressing and difficult time for all children, regardless of their circumstances. The stress of a separation can be worse for children in military families and the forces will provide additional assistance to support families with children during this period.
In certain circumstances, approval can be obtained to remain in family accommodation whilst a child finishes their education (i.e. where the child is in the midst of GCSE’s or A-levels) and provision of contact housing for visits with children. However, they will not support costs for children to visit their parents serving overseas and, in the vast majority of cases, are unable to provide family accommodation for both separated parents.
Generally, the parties should give primacy to the best interests and welfare of the children, both in relation to their living arrangements and the time that they spend with either parent.
Often, a separation will result in the need for change in schooling, medical care and/or location for the children. Where both parents share parental responsibility, it is important that the parties attempt to reach an agreement beforehand. If an agreement cannot be made, it may be necessary to make an application to the family court to determine the issue.
Can court proceedings be issued against someone on active duty?
It is worth noting that service members on active duty can apply for a stay, or temporary halt, of any civil action, including children proceedings, which are initiated against them whilst on active duty or within a specified period after their release from active duty. This is so that service members can devote their time and energy to defending the nation and not face orders or judgments against them while they are unable to appear in Court.
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