What is the significance of the date of separation when a marriage or civil partnership comes to an end?

The date of separation is of crucial importance under Scots law when a marriage or civil partnership comes to an end. This article will provide an overview of when a couple will be deemed to have legally separated and consider the implications this date has upon the valuation of matrimonial or civil partnership assets, and the timescales in which parties can raise divorce or dissolution of civil partnership proceedings.

When is the date of separation?

The date of separation is referred to in Scots law as “the relevant date” and is defined in the Family Law (Scotland) Act 1985 (“the 1985 Act”) as the earlier of: the date upon which the parties ceased to cohabit together; or the date a court summons or writ is served in a divorce or dissolution of civil partnership action. For the purposes of the 1985 Act, parties are only deemed to cohabit with each other where they are living together as husband and wife or as civil partners.

Establishing the relevant date is a matter of fact. In some cases, there can be an obvious date which is linked to a specific event, such as where one spouse or partner moves out of the matrimonial home or into a separate bedroom. However, this can sometimes be less clear cut, for instance where there is a gradual drifting apart or where one spouse or partner is working overseas and already spends time residing away from the matrimonial home. Where there is no clear date, evidence will need to be gathered to establish whether the parties have separated, and on which date. If this cannot be agreed, then the court may ultimately have to determine the relevant date.

How does reconciliation affect the date of separation?

Where parties separate and resume living together as husband and wife, the original date of separation will be applicable where they reconcile for periods not exceeding six months and then separate again. If the reconciliation lasts longer than six months, then the date of separation will be the most recent one.

What are the implications of the date of separation on the valuation of matrimonial assets?

The relevant date is of particular importance in relation to the identification and valuation of matrimonial or civil partnership property. Generally speaking, only assets and liabilities which are acquired by the parties during the marriage (or civil partnership) and are held by them, either in sole names or jointly, at the relevant date will form part of their matrimonial or civil partnership property. Such assets are valued as at the relevant date. and that value must be shared fairly between the parties on divorce or dissolution. This can have significant implications, for instance where the value of an asset increases or decreases substantially after the relevant date. Further, an asset acquired after the date of separation will not fall within the matrimonial property to be divided within the parties.

How long do parties need to wait from the date of separation to raise divorce or dissolution proceedings?

To apply for a divorce or dissolution of a civil partnership, it must be shown that the relationship has broken down irretrievably. Parties can demonstrate the irretrievable breakdown of their marriage or civil partnership after one year of separation (with the consent of the other spouse) or two years of separation (the other spouse does not require to consent). Whilst proceedings can be raised immediately on the grounds of adultery (this is not applicable to civil partnerships) or unreasonable behaviour of one spouse or civil partner, this can be more difficult and expensive as evidence of the other party’s adultery or unreasonable behaviour would be required in order to establish irretrievable breakdown.

If you require advice on the issues discussed in this article, please get in contact with our family lawyers.