I have no statistical evidence to support this, but my impression is that divorces based on two years’ separation with consent are less common than they used to be.  If I am right, the reason may be the introduction of pension sharing ten years ago.

If a couple decide to wait for two years before getting divorced, they enjoy the obvious advantage of avoiding a ‘fault-based’ divorce involving adultery or unreasonable behaviour.  Financially, they can get on and sort out their arrangements without having to wait to get divorced.  They can agree on, and implement, the transfer or sale of the matrimonial home or the payment of a lump sum or the payment of maintenance.

The one exception is pension sharing.  You cannot have a pension sharing arrangement unless the court orders it – it is simply not available on a voluntary basis.  The court is not allowed to make a financial order until there is a decree nisi of divorce, so until there is a divorce there can be no pension sharing.

Consider the position of a wife who has no pension provision but whose husband has a large pension (it could just as well be the other way round, of course).  Should she agree to wait two years before getting divorced?  What if her husband were to die during the two years?  Well, she might get some benefits under his pension by virtue of still being married to him.  Some schemes have reasonably generous widow’s pension benefits.  The exact position should be established before the wife makes her decision.  Is it enough to be technically still married, or does being separated mean that the benefits are less generous or non-existent?  Are there any widow’s benefits in the first place?

Often the safest course of action for a wife in this situation is to get divorced straight away and secure her pension sharing order.  Once the pension sharing order has been made by the court and has ‘come into effect’ (a notional event which happens three weeks after the order is made regardless of whether the order has been implemented or not – it usually hasn’t by then) the wife gets her share of the husband’s pension come what may.  The husband can safely die, and the wife still gets her share of his pension.

I always alert my client, whether husband or wife, to this point at the start of a case when we discuss which sort of divorce to go for.  It may be unusual for a spouse to die during the two years of separation, but there is potentially a lot at stake, given that a surviving wife could lose twenty or thirty years of income if she agrees to wait for a divorce, then the husband dies before there is a divorce and a pension sharing order and it turns out that there are no widow’s benefits under the husband’s pension scheme.  In that unfortunate situation the wife would regret not having divorced at the earliest opportunity.