Why the Date of Separation Matters
In any Scottish divorce, one date does an enormous amount of work: the date the parties separated, known in law as the “relevant date”. Under the Family Law (Scotland) Act 1985, the relevant date fixes the point at which the net value of the matrimonial property is calculated for financial provision. Assets acquired, and debts incurred, after that date generally fall outside the pot to be shared.
Where the parties agree on when they separated, this rarely causes difficulty. But where they do not, the dispute can be worth a great deal of money. A recent Sheriff Court decision shows just how stark that disagreement can be.
The Dispute: Seventeen Years Apart
The case concerned a couple who married in the early 1990’s. Only one preliminary issue needed to be resolved before anything else could proceed: when had the parties actually separated?
- The wife (the pursuer) maintained that they separated after around 15 years of marriage in around 2005.
- The husband (the defender) maintained that they separated after around 32 years of marriage in around 2022.
That is a difference of some 17 years. With the former matrimonial home and pensions the main assets, the choice of date carried significant financial consequences for both parties.
The Legal Test
The relevant provisions are sections 10(3) and 27(2) of the 1985 Act. Section 27(2) provides that spouses cohabit only when “in fact living together as husband and wife”.
The court’s task, as formulated in Banks v Banks [2005] Fam LR 116 and approved in HS v FS [2015], is to determine when the parties ceased to cohabit. The key principles are that this is a question of fact, judged objectively by reference to the illustrative factors identified by Professor Clive and any other relevant matters, and that decisions in other cases will not necessarily assist. The court also drew on Bain v Bain [2008] CSOH 95: the nature of the relationship during cohabitation may cast light on any later relationship.
The Decision
The sheriff found that the parties ceased to cohabit on the later date in 2022, the date proposed by the husband.
Practical Lessons
- The date of separation is a question of fact, judged objectively on how the parties actually behaved;
- Conduct speaks loudly — shared holidays, joint finances and how others perceived the couple are relevant;
- Contemporaneous records made before any dispute can carry particular weight; and
- The burden rests on the party asserting the date. Here, the pursuer failed to discharge it and the husband was successful.
Gibson Kerr can assist with all aspects of separation and divorce. If you would like assistance, please contact are Family Law Team.
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