For separating married couples, it is vital to identify the date on which you deem the marriage or partnership to be over. In Scottish Law, this is known as "The Relevant Date". Following the success of the MSHB Family Law team in the case of CD v ND 2024 CSOH 98, where the relevant date was in dispute, we explore what the relevant date is and why it matters.
The Relevant Date and How it is Determined
The legislation asserts that the relevant date is whichever occurs first:
- The date that the parties cease to cohabit, or
- The date of service of summons in a divorce action or civil partnership.
In practice, it is rare for a couple to commence separation by serving a Writ and/or live together after a divorce summons is served. The focus here will be on the date the parties cease to cohabit. Here cohabitation is where they cease living together as a married couple. But what does cohabiting as a married couple mean?
A separation can often occur as a result of a disagreement or a particular event leading you to decide that your marriage is over. This can be easily pinpointed as the date one person leaves the household, and you both agree that the marriage has ended.
For many couples, however, the relevant date may be harder to distinguish as their relationship ends gradually and separation occurs over weeks and months. You may continue to live in the same house but not cohabit as a married couple. One person may have a different view of the relationship than the other. Whether one or both of you have communicated to the other that the marriage is over is important but not necessary. Where there is a dispute, the Court will consider several factors in determining your date of separation:
- Living Arrangements
- The Court takes into consideration whether you still share a bed, whether you eat meals together, and if you generally look after one another. In CD v ND the Court was persuaded that the couple were still married as they shared a bed on family holidays, even though they lived in different countries and physically lived together as a couple only when on holiday.
- 'Are they still together?'
- An important consideration is whether you appear to family and friends that you are still together and how you present yourself to the outside world. A Court will examine social events and public interactions very closely. What was understood by friends and family is very important, were they told that the relationship had come to an end? In CD v. ND the Court examined the minutiae of correspondence and movements of the couple and how friends and family viewed the relationship to assist it in deciding when the parties separated.
- 'We were on a break!'
- You may initially separate, decide to reconcile but ultimately separate again. The relevant consideration in this situation is how long you initially separated and reconciled for. The law provides that no consideration will be given to separation and reconciliation if the separation was for 90 days or less.
Why is the Relevant Date Important?
The Relevant Date is the date on which the matrimonial property is valued for division of matrimonial property.
Matrimonial property means all the assets and liabilities that are in existence at the date of separation, and which have been acquired during the marriage. These assets and liabilities will be shared between you and your partner in a division decided by either an agreement between both of you or by the Court if there is a dispute.
The date on which the property is valued is very significant. One party may have acquired large sums of money or racked up a lot of debt. Conversely, it could mean that both of you must share a liability, which can be accrued by one party and completely unknown to the other. In either case, where the separation date falls could mean a substantial difference to your overall financial outcome. The protection of assets or avoidance of liabilities can itself be a relevant factor if a Court comes to determine the issue but is not in itself determinative.
A non-financial reason the relevant date is so important is that it is used to determine when a party can apply to the Court for a divorce. To be divorced in Scotland, the Court has to be satisfied that the relationship has broken down irretrievably. The easiest ground to prove is that the parties have been separated for one year with both of their consent or two years without consent. You may wish for the conclusion of a relationship to happen as quickly as possible, and therefore, the relevant date is important for this purpose.
What Happens If You Cannot Agree on the Relevant Date?
If the relevant date cannot be agreed upon, the parties will need to provide evidence to establish that date. As in CD v. ND, a preliminary proof may be necessary to decide this point alone. Going to proof is a costly option and should be the final route taken.
If the matrimonial property is relatively small, it may not make a difference at all which date is chosen. There may be no significant change in the value of matrimonial property between the disputed dates. In this case parties are advised to compromise or choose a date somewhere in the middle of the dates proposed by each. While the date can still be important emotionally to you, it may be wise to consider this route and avoid costly litigation and further acrimony between you and your partner.
If you are facing the difficult process of separation or divorce, understanding the concept of the "Relevant Date" in Scottish Family Law is essential. It can significantly impact your financial outcomes and your rights as you move forward. If you have questions or need assistance in navigating this complex process, we invite you to call our experienced Family Law team on 0141 221 1919. Take the first step towards clarity and support today. Your future matters.
