PENSIONS/ANCILLARY RELIEF: R (Thomas) v Ministry of Defence [2008] EWHC 1119 (Admin)

28 MAY 2008

(Administrative Court, Queen's Bench Division; Wyn Williams J; 22 May 2008)

On divorce the judge made a pension sharing order in the wife's favour. The wife could only take the benefit of the pension when she became 60, although the husband, also less than 60 years old, was already in receipt of his share. Although R (Smith) v Secretary of State for Defence [2004] EWHC 1797 (Admin) had decided that such an arrangement was not a violation of human rights, the wife sought judicial review, arguing that the provisions preventing her from receiving a pension before her 60th birthday were discriminatory under European Community law, because the pension was to be considered as pay within European Community Treaty, Art 141(1).

The judge refused judicial review. While the share of the pension being paid to the husband could be defined as pay within Art 141(1), an order in ancillary relief proceedings following a divorce to the effect that the wife should receive part of that pension did not convert the share received by her into 'pay' for Art 141(1) purposes.

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