Why the date you separated is important for a Scottish family law dispute

When a couple separate, the date of their separation can often be ingrained in their memory just as much as the date of their meeting or their marriage. Depending on the circumstances of the separation, the date can be particularly significant because of the occurrence of an event that caused the breakup of the marriage; something may have been said or admitted, something witnessed, or something done. In other cases though, the date of separation can be somewhat vague because sometimes people just drift apart and there appears to be no defining time when the parties decided or spoke to each other about the marriage or relationship being over.

While in some countries the date of separation is not significant for the purposes of any court proceedings, in Scotland the legislation setting out the framework for division of matrimonial property in divorce, as well as any claims in cohabitation cases, has the date of separation at the forefront of its consideration.

Divorce: in marital cases, the Family Law (Scotland ) Act 1985 has at its core an ingrained principle that the valuation of matrimonial property, and indeed the division of matrimonial property, should essentially be based on the assessment of those assets at the date of the separation between the parties. In Scotland, therefore, the date of separation is absolutely significant and highly important in divorce cases, unlike in other jurisdictions such as England and Wales. Therefore, there is a substantial difference of approach in Scotland.

Cohabitation: likewise, in cohabitation cases, and referring to the Family Law ( Scotland ) Act 2006, the date of separation sets up the statutory 1 year timescale for making any claims after which they are time barred.

Careful attention and early advice in either situation from an experienced solicitor therefore needs to be obtained at the earliest opportunity.

When is the date of separation?

The date of separation in Scotland is deemed to be when the couple stopped living together as if they were man and wife. This is looked at objectively - not specifically from the mindset perspective of either individual, but what a court or anyone looking in on the marriage would consider to be the objective date the party stopped living together. This may seem like an easy thing to work out, and is in some instances because there might indeed be a clear defining moment.

However, there are numerous situations where the position is much more difficult to identify. In particular, where a couple start to drift apart, sometimes they might move to separate rooms but still live together and do family things together. They might still externally do things or socialize together as a couple. They might fall out temporarily and want space from each other, but not want the marriage to end. They might want to attend couple or marriage counselling to try and salvage their failing marriage. They might also have family, ethical, financial, moral or religious reasons not to want to actually separate.

However, there might be specific facts which lead one objectively to view the marriage or relationship as being over, some of which will have different levels of significance depending on the particular circumstances of each relationship. For example, they might stop engaging in sexual relations, although this is not determinative in itself as many couples are unable or do not wish to engage in sexual relations but still live happily together. They might stop doing things together as a family and socializing as a couple. They might stop assisting each other with household tasks. They might stop going on holiday together. They might separate out their finances. All of these objective factors might well be relevant in different capacities to the individual circumstances of a couple separating. Each case is determined on its own set of individual facts. Accordingly, one of these facts might be more important or be given more weight in any given case than another. There is a requirement to therefore obtain a clear and definitive assessment of the background to the breakup of the marriage in order to determine the correct date of separation.

If the parties agree the date of separation then all will be fine and well, and the solicitors instructed by the parties will obtain valuations of the matrimonial property at that particular date. In extreme cases however, there can be such a significant disagreement between the parties that it results in court proceedings to determine factually when the parties separated.

In one of the leading cases of Banks v Banks, the difference between the parties’ respective assessments of the date of separation was 10 years. In that case, one of the parties worked abroad quite a lot and did not return to the matrimonial home very often. There came a period of time when they had separated their finances and often the husband stayed in hotels when returning. They stopped going on holiday together and socializing. In that particular case, the court ultimately assessed that the parties hard in fact split five years earlier than one party had argued in their pleadings. One of the most important factors in that particular case was that the court assessed there was a clear delineation of their finances at a particular time. They had also stopped doing family things together at a certain juncture in the relationship, and it was obvious to friends and relations.

As indicated though, each case is assessed on the individual circumstances of that particular couple. In a recent unreported case the parties disagreed the date and one argued it was five years later than the other. Their views on the circumstances were completely different, in that one party continued to do family tasks for the other including cleaning and cooking. There were also some sexual relations and family activities and holidays undertaken together. They also had connected finances despite the fact one party also had their own separate flat that they stayed in part of the week. In that case, one of the parties considered the marriage still ongoing while the other did not. In that case, the judge ruled the parties had separated when they obtained separate accommodation, albeit the activities of the parties afterwards towards each other had made it a very difficult task for the judge and it was a narrow decision.

Why is it so important?

The main reason it is so important in Scotland is that essentially the date of separation is the date when matrimonial assets are calculated for division.

If there are assets which are owned individually by parties, while these might be taken into account as matrimonial assets for the purpose of any claim, the date when they are valued and assessed is the date of separation.

If one party has individual assets which increase in value post-separation, that increasing value is their own and does not have to be shared or taken into account. The increase or decrease in value after the separation belongs effectively to the owner of that individual asset and the other party is not entitled to share that in Scotland.

If the asset is a joint asset then the increase in value after separation will be taken into account because both are owners of the joint asset and so entitled to that increase together.

There can be significant differences in values between property owned at the date of separation to the time of the parties seeking a divorce. In the Banks v Banks case, the difference in settlement terms to the parties ran into several hundreds of thousands of pounds.

There can be a reduction as well as an increase in the value of certain assets. Certain assets might be sold by one party post-separation but before divorce, but should still nevertheless be taken into account, so it is important to get the correct date and assess what things were worth at the time the actual separation took place.

There also could be significant increases in pension interests and savings as well as income and further capital generated from assets which do not fall to be divided as matrimonial property. There could also be bonuses paid post-separation which are not to be divided up. In the extreme case of a party winning the lottery after the date of separation but before any divorce, then the other party would not be entitled to a share of that lottery win if that windfall came after the date they had separated!

Summary

The date of separation really is a cut-off date in Scotland, so it is hugely important to get expert advice when separating in Scotland whether that be as a married or cohabiting couple.