MSHB Family Team acted for the Defender in a recent Court of Session action where the Outer House was asked to resolve a dispute between a divorcing couple relating to the relevant date for the purposes of the Family Law (Scotland) Act 1985. This is the date the couple ceased to cohabit as husband and wife, and is an important date in Scots divorce Law for every divorcing couple as this is the date where assets and liabilities are valued to determine the total value of the matrimonial property to be divided upon divorce.
The separation dates proposed by the parties were over three years apart. The Pursuer, CD claimed the relevant date was 30 December 2017. The Defender maintained that the relevant date was 6 January 2020.
The parties were married in America on 20 August 1998. There are four children of the marriage one of which is under the age of 16.
In 2013, the family moved to Australia due to the pursuer's employment. Continuing his employment, the Pursuer returned to Scotland in 2016. Simon, the eldest child, returned to Scotland with the Pursuer. The Defender decided to stay in Australia with the three other children.
The Relevant Date Dispute
In September 2017 and December 2017, the Pursuer found text messages between the defender and other men. The Pursuer confronted the Defender on 30 December 2017 about the messages on her phone and told her the marriage was over. The Pursuer argued that the Defender knew at this point the marriage was over, and they did not share a bed after that date.
The Defender, claimed that the parties did not discuss separation beyond 30 December 2017. They had spent time together as a family on numerous occasions between 2017 and 2020. The Defender submitted that the date they separated was 6 January 2020 when she and the three younger children went on a cruise ship holiday without the Pursuer and Simon.
Two of the parties' children Andrea and James gave evidence for the Defender, stating that on the family holiday in 2018 to Florida everything was normal between the parties and their parents shared a room.
The Pursuer led evidence that after 30 December 2017, all interactions were centred around the children. He maintained that there was no intimacy in their relationship. He maintained that he ended the relationship following the defenders intimate communications with other men. He said that he had intimate relationships with other women. He would holiday with the family and the defender and visit Australia only to maintain his relationship with the children. When in Australia, the pursuer would not sleep in the same bed as the defender and slept on a bed on the upstairs landing.
The defender led evidence that showed the pursuer made gestures of love and affection after December 2017. There was no discussion of separation after 30 December 2017 and that after a brief initial 'off' period the parties resumed interaction in an affectionate way indicative of normal family life. He had sent flowers and a card to her place of work in 2018 for the Defender's birthday which the pursuer argued was from the children. In cross-examination, however, it was revealed that the card was addressed to the Defender's first name and not 'mum'. The parties holidayed together in Florida in July 2018 and the Pursuer had proposed a move the Boston together. The Pursuer left his employment in November 2019 and the reason for his departure provided in the press was to be closer to his family.
Lord Stuart, carefully dissected and looked at all of the explored in the evidence led by both parties, including whether or not the parties were wearing their wedding rings in photographs during 2018, financial decisions and the nature, tone, content and timing of all of the written communications before the Court.
Following what he noted to be a 'destructive cross examination', Lord Stewart questioned the credibility and reliability of the pursuer. In his evidence he stated that his communications with the defender were solely for the benefit of the children. However, the defender's Counsel highlighted various inconsistencies, such as sending flowers to her place of work and a Valentine's card. Both could be received by the defender as signs of love and affection which, in cross examination, the pursuer accepted.
Lord Stuart found from the evidence that the parties relationship seemed to have improved in 2018. He accepted the defenders evidence that the parties shared a bed during this time and were seen pictured as a 'united family.' The evidence accepted by the Court was wholly consistent with an ongoing relationship as husband and wife. In 2019 the nature and tone of the messages between the parties had changed from 2018. However, the defender and younger children still travelled to Scotland to visit the pursuer and Simon. The parties wore their wedding rings during this trip and exchanged messages about their respective activities. Lord Stuart held that the communications between the parties during the trip to Scotland, were consistent with 'ongoing family life' with the parties as husband and wife.
The defender gave evidence that over Christmas and New Year 2019 the pursuer acted differently and chose to sleep on a sofa bed in the hallway. Lord Stuart noted that this evidence showed signs of cracks in the parties' relationship in late 2019.
In conclusion of his judgment, Lord Stuart said the communications between the parties regarding the cruise in January 2020 had 'an element of bitterness to it.' He held that when the defender and the younger children left on the cruise ship without the Pursuer and Simon, the parties 'consciously let go of their relationship', 'they separate and are no longer cohabiting as man and wife.'
The relevant date was therefore held to be 6 January 2020.
