R (Smith) v Secretary of State for Defence; Secretary of State for Work and Pensions (appearing as interested party) (2004) EWHC 1797 (Admin)

QBD: Wilson J: 27 July 2004

Army pension provisions, which upon divorce compelled a non-military spouse to wait until she was 60 to receive her share of a pension to which she had become entitled on divorce, were justified because the pension provided would be enhanced and the purpose of providing for old age would be achieved.

Wilson J so held in a reserved judgment dismissing the claim of Lady Susan Smith, the former wife of General Sir Rupert Smith for a declaration of incompatibility, claiming violation of : (i) her right to peaceful enjoyment of her possessions (art 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, scheduled to the Human Rights Act 1998); (ii) her right to respect for family life (art 8); and (iii) her entitlement under art 14 to enjoy her rights under such articles without suffering discrimination on grounds of gender, status, or as an ex-wife.

WILSON J said that provisions in place and applying to spouses of military personnel, in particular ss 101C(1) and 101B of the Pension Schemes Act 1993, had the effect of permitting the divorced husband to claim his pension before 60, but preventing the wife from doing so until she reached 60. did not violate the claimant's rights under art 8 of the Convention or art 1 of the First Protocol, although they fell within the ambit of such provisions and accordingly she had a right under art 14 to enjoy the rights without discrimination. The provisions differentiated not only directly on grounds of age but also indirectly on grounds of gender when delaying payment to the pension credit member until such member was 60 even in circumstances in which the active member was receiving, or would receive, his pension before reaching 60. However, it was established that the state was justified in taking steps to prohibit absurd results foreseeable if much younger divorcing spouses were held to be entitled to immediate receipt; furthermore, delay would result in an enhanced amount of the pension, and that result supported the primary purpose of providing an income in old age.

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