Jasmine Birtles answers your questions in an exclusive pensions and retirement Q&A for GBN membership. Have you got a question about your pension? Get in touch by emailing money@gbnews.uk.
Question: "My ex-husband (divorced in 2014) served in the military. He remarried later that year. His now widow receives his army pension in full. Could I have been entitled to this as it was not part of our divorce settlement?
"Is there anything I can do to now receive this or at least part of it?'
Jasmine replies: It’s much harder to access a former partner’s pension once the divorce has been finalised.
Generally, pension entitlement is sorted out as part of the settlement and once it has been signed off, that’s it.
It would probably be useful to contact the lawyer who represented you in your divorce and ask why they did not include this most important element when they arranged the split.
Pension entitlement is generally sorted out as part of a divorce settlement
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They should have organised this for you at the time.
Keystone Law’s family partner Hannah Cornish elaborates: “If the parties’ finances were dealt with when they got divorced, then the pension would have been dealt with as a part of a financial order either explicitly by way of a pension sharing order or implicitly under the clean break provision.
“Assuming this has happened under a financial order, then unfortunately, she would have no recourse to her ex-husband, but it would be worth double-checking this with any solicitor she may have instructed on the divorce.
"If she did use a solicitor and they failed to advise her in relation to pensions on divorce, then there may be a recourse against her solicitor."
However, if you didn’t get a final settlement in your divorce then there are possibilities.
Charlotte Beck, Partner in the family law team at Slater Heelis explains: “Assuming you did not get a final court order, then (had your ex survived) you would in theory still have been able to apply for a pension sharing order against his army pension.
"This is because divorce itself does not end the financial claims in respect of the marriage. Your ex’s remarriage is also not relevant to you being able to apply for a pension-sharing order.
"Regrettably, however, your ex’s death is a relevant matter under law, and claims for pension sharing orders do end on the death of either party.
“If you and your ex-husband did obtain a final court order in respect of the financial matters, then it may not be possible to make any claims at all (including under the Inheritance Act where claims are made against the deceased’s estate) particularly if the final court order provided for what we call a ‘clean break’.
“A ‘clean break’ refers to a section of the final court order that formally ends the financial claims that you and your ex can make against each other. If there is a ‘clean break’ section in your original financial order but your ex did not disclose his army pension at the relevant time when required to do so then you might be able to ‘set aside’ (cancel) the final court order, though this is a complex area legally.
“If you resolved the financial issues outside of court proceedings, this process of full and frank disclosure with pension pots should still have been undertaken. If it was not, then – if you instructed solicitors – they may have been professionally negligent, which means you may be able to claim against the solicitors accordingly.
“Where an ex-spouse has passed – which I appreciate is your situation – in certain situations, it might still be possible to make financial claims under the Inheritance Act, provided there has not been a ‘clean break’ order.
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A strict time limit applies in respect of Inheritance Act claims
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"These claims are limited to ‘reasonable financial provision’ being made from the deceased’s estate.
"In your case, as you were divorced from your ex, ‘reasonable financial provision’ means what it ‘would be reasonable in all the circumstances of the case for you to receive for your maintenance’.
“It is important to note that strict time limits apply in respect of Inheritance Act claims, and that it is not possible to apply for pension sharing orders under the Inheritance Act.
"The types of orders available under the Act include lump sum payments, periodical payments, and property transfer and settlement orders. You must also be able to show that your ex’s will (or intestacy if he passed without a valid will) did not make reasonable financial provision for you."
Finally, Benson Varghese of Varghese Summersett adds: “Your best option would be to meet with a lawyer who knows about military divorces. They can look at your old divorce papers and see if there's anything at all to help you get some of that pension money. But it's possible the court won't want to change what was already decided in the divorce.”
Jasmine Birtles is a personal finance expert, TV and radio presenter and author of 38 books.
Her website, MoneyMagpie.com, covers all aspects of personal finance from money-saving and money-making ideas to investment and pensions information. She is a keynote speaker at conferences around the world.
