The law¹ provides that the relevant date is whichever is the earliest:
It is highly unusual for a couple to continue to live together as husband and wife after the service of a summons for divorce and so, most usually, we must look at what date the couple ceased to cohabit. This is most commonly referred to as the date of separation.
The date of separation is the date that the couple stop living together as husband and wife or as civil partners. Often, there will be a discussion, disagreement or event on which the couple reach the conclusion that their relationship has come to an end. Perhaps one person leaves the family home at that time and lives elsewhere. Sometimes, however, it is more difficult to pinpoint the exact date of separation. A couple can remain living together and drift apart over weeks, months or even years.
The living arrangements of the couple are particularly important – whether they still share a bed and whether they cook, clean and generally look after one another. Also of importance is how they appear to friends and family – whether they still socialise and go out together as a couple. Lastly, it is relevant if and when friends and family were told that the relationship had come to an end (if indeed they had been told). It is sometimes difficult to agree the exact date of separation. One person will, from time to time, have a slightly different view than the other.
It is also not unheard of for couples to separate, reconcile and subsequently separate again. Helpfully, the law provides for that. What is relevant in a reconciliation situation is how long the couple were separated for and how long they reconciled for. No account will be taken of any period of separation and subsequent reconciliation unless the period of separation and reconciliation were both for more than 90 days. Romantic stuff!
Well, the date of separation is the date on which the matrimonial property is identified and valued.
Matrimonial property means the assets and liabilities acquired by the parties from their own income and efforts and in existence at the date of separation. (For completeness, gifts from third parties and items inherited are excluded from the definition of matrimonial property). So, the assets and liabilities in existence at the date of separation are what falls to be shared between the parties.² One date or another could, therefore, be hugely significant. For example, what if one party wins the lottery or conversely, racks up lots of debt? It could very much be in one person’s interest to have an item included or indeed excluded from the matrimonial property.
Another reason why the date of separation is important is in considering when either person can apply to the court for divorce or dissolution. To obtain a divorce or dissolution in Scotland, the court has to be satisfied that the marriage or civil partnership has broken down irretrievably. The easiest way to prove that this is the case is for the parties to have been separated for one year and for them both to consent to the divorce or dissolution, or to have been separated for two years, in which case consent is not required.
The relevant date can make a significant difference, therefore, to when a couple can apply for divorce or dissolution. For some couples, this may not matter, but others may be keen to bring the relationship to a conclusion as swiftly as possible.
A related issue which can be significant is if one person is paying financial support (aliment) to the other. Often, aliment is paid until divorce and so it can be in that person’s interest for divorce to be granted sooner rather than later.
Often, my advice would be to look at the matrimonial property at both dates. There might not be any significant difference between the two dates, in which case it may not make all that much difference which date is used.
Another option might be to compromise and “meet in the middle.” That is often my advice when the sums are not huge – it can quickly cost more to argue about it than to compromise.
The last option would be to have a preliminary proof on the date of separation, or else appoint an arbitrator to make that determination. Both of these options are costly, and accordingly should be the last resort, taking into account the cost benefit and chances of success. In either instance, an award of expenses will likely be made against the unsuccessful side which is best avoided!
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