“Are they still together?”: Settling the relevant date

Under s 10 of the Family Law (Scotland) Act 1985, the “relevant date” is defined in subs (3) as meaning whichever is the earlier of:

“(a) subject to subsection (7) below, the date on which the persons ceased to cohabit;

(b) the date of service of the summons in the action for divorce”. 

Section 27(2) of the Act says: “the parties to a marriage shall be held to cohabit with one another only when they are in fact living together as man and wife”. 

In some situations, a couple can spend some time living together after a separation in an attempt to reconcile. A short period of reconciliation, however, will not put the relevant date on hold. In a rather complicated way, s 10(7) of the Act states:

“For the purposes of the subsection (3) above, no account shall be taken of any cessation of cohabitation where the persons thereafter resumed cohabitation, except where the persons ceased to cohabit for a continuous period of 90 days or more before resuming cohabitation for a period or periods of less than 90 days in all.”

So, if a couple separate for at least 90 days then reconcile for a time frame(s) totalling 90 days or less, the initial date of separation still stands and no account will be taken of the time they attempted to reconcile. If the criteria above cannot be applied, the relevant date will be the date they finally separate after the attempt at reconciliation.

The case law

Brown v Brown 2003 GWD 19-588

This Outer House decision by Lord McCluskey considered the situation where a couple resided under the one roof but were not cohabiting. The husband said that he and his wife had separated in 1991 when he left to reside with another woman. While he moved back into the matrimonial home in 1996, he denied they had resumed cohabitation at that point. It was accepted in evidence that after 1996 the husband had stayed infrequently in the matrimonial home, but that during those periods he and his wife slept in the same room and were having marital relations. Although he was absent from the house on many occasions to pursue an affair, it was still held, based on the evidence, that there had been a resumption of cohabitation. 

Banks v Banks 2005 FLR 116

This case set out the approach that the courts should follow in determining the relevant date. The issue in the case was that the husband worked away a lot, therefore it was difficult to determine when the parties had last lived together. 

Lord Carloway said: “The task of the court is to determine when the parties ceased to cohabit, having regard to the statutory provision that cohabitation occurs only when parties are in fact living together as husband and wife. That is, as the provision itself states, a matter of fact. The ultimate determination of the issue must depend upon the particular circumstances of a given case. As a generality, the court must look at the issue objectively, no doubt taking into account the illustrative factors mentioned by Professor Clive. There may, of course, be many others which emerge as relevant. The intention of the parties cannot be determinative of the issue. In that sense, there is no absolute requirement for one of the parties to have decided that the marriage or relationship has run its course or that such decision should have been communicated by one party to the other. However, the intention of the parties and any communication of them to each other may be relevant factors in the equation.”

Bain v Bain 2008 FLR 81

In this case, following an argument the defender left the family home in December 2004 and lived in a flat owned by the parties over a two and a half year period. Although living in separate properties, they stayed in each other’s properties as well as celebrating occasions and anniversaries before separating permanently in May 2007. The wife pursuer argued that she and her husband had lived together as husband and wife throughout that period albeit in unconventional circumstances. The court did not accept that argument, holding that the parties had been in a conventional marriage up to the time the husband left to stay in the other property and thereafter they had been living separately but contemplating reconciliation. 

Letters had passed between parties’ solicitors which the court held supported the husband’s position that cohabitation had ended in December 2004. This included three letters from the pursuer’s solicitor to the defender’s solicitor between March 2005 and May 2007 in which it was stated that the pursuer considered the marriage to have broken down irretrievably.

In endorsing the approach adopted in Banks v Banks, Lord Turnbull said: “The question of when the parties ceased to cohabit is one of fact to be determined having regard to s 27(2) of the Family Law (Scotland) Act 1985, which provides that the parties to a marriage shall be held to cohabit with each other only when they are in fact living together as man and wife. It is a matter to be decided objectively. Accordingly, the examples of decisions arrived at by other judges in other cases may not be of particular assistance. However, what is clear from the cases to which my attention was drawn is that the nature of the relationship which existed between the parties during the period of admitted cohabitation may be a factor which casts light on the nature of any subsequent relationship.”

McLeish v McLeish [2022] SAC (Civ) 12

This case was an appeal against the decision of the sheriff at a preliminary proof on the relevant date. The husband appellant argued that the sheriff erred in law in determining the case. The wife respondent cross appealed. Both sides challenged certain findings in fact made by the sheriff. 

These related to the sheriff’s finding in fact that the parties had still been cohabiting as husband and wife because the appellant had regularly stayed overnight at the respondent’s property at the respondent’s invitation. It was submitted that it was not open to the sheriff to find that cohabitation had been established by this fact. The Appeal Court refused the appeal and endorsed the approach outlined in Banks v Banks. In particular it said at para 16:

“As previously stated, no one factor is determinative and the decision depends upon a consideration of all the relevant factors in the particular circumstances of the case. There were other factors which the sheriff took into account in reaching the decision which he did. The nature of the cohabitation was but one factor.”

The court went on to outline some of those other factors, including residence at the respondent’s property and elsewhere, sleeping and living arrangements, financial arrangements, marital relations, holidays and socialising, among other things. 

The cross appeal was allowed only to the extent of varying the judgment to delete reference to the respondent having invited the appellant to the respondent’s property. 

Gacek v Gacek [2022] SC ABE 22

Sheriff Nicol considered all of these cases in the recent decision Gacek v Gacek. 

The wife raised divorce proceedings against her husband on the grounds of his unreasonable behaviour. She also sought payment from him of a capital sum. The wife asserted that they had separated on 16 December 2017. The husband asserted that they separated in September 2014. Before the financial matters could be considered, the matter required to proceed to a preliminary proof on the date of separation. Both parties gave evidence along with the wife’s sister and niece. There was no evidence led about correspondence as to when the parties separated. 

The sheriff reviewed the previous cases and took from those that in determining the issue, various factors would be relevant, such as living arrangements, whether those changed and if so when, whether the parties continued to have marital relations and whether any cessation of marital relations coincided with the date one party averred that they ceased to cohabit, their financial circumstances and whether and when those changed, their intentions as to whether their relationship amounted to cohabitation or not, and the circumstances surrounding any periods of separation and reconciliation. Correspondence from solicitors stating that one party considered the marriage to be at an end might be informative without being determinative. 

Importantly, the sheriff said: “There is no checklist. Other factors can and often do apply. Where there are competing factors, some of which support the position being adopted by one party and some support the position being adopted by the other (as will almost always be the case), it is the duty of the court to objectively assess all factors, balance them and determine, on the balance of probabilities when the relevant date was.”

The wife gave evidence about the following factors which she said supported a finding in fact that the relevant date was 16 December 2017:

1. They went on holiday together on several occasions between 2014 and 2017 but not after that.
2. She was employed by the husband’s construction company until January 2018 when he terminated her employment.
3. She contributed a sum of money to the purchase price of a property in November 2015 which she said was an investment for both parties.
4. They had marital relations up until December 2017 including during various family holidays.
5. They purchased a property in joint names in Poland in 2017.

The wife’s witnesses corroborated her position that she continued to live with her husband until December 2017. 

The husband, on the other hand, relied on evidence that the wife, in a 2017 summary of evidence prepared by the Crown in a criminal case, was recorded as having stated to the police that she and her husband separated in 2014. He also said she claimed state benefits as a single person in 2014 and continued to do so, which he said showed a tendency to mislead authorities. He referred to a complaint to the police in 2014 which resulted in him being required to stay away from her and the former matrimonial home, which he said marked a significant change in their relationship. He was also subject to bail conditions on various occasions to stay away from the house.

In relation to the property purchased in November 2015, he said this was as a place for him to stay. It was in his sole name.

Overall, he described the relationship between the parties between September 2014 and December 2017 as one of convenience. This involved his relationship with the children, the wife’s limited involvement in his business, the property purchase in Poland and their sex lives. He refused to accept that any of this constituted living together as husband and wife.

Having considered all those factors and the evidence of the parties and of the wife’s family, the court preferred the wife’s evidence and held that the parties separated on 16 December 2017. 

Conclusion

Although this case predates the pandemic (in terms of the relevant dates proposed), it is entirely conceivable that over the next few years there will be disputes about the relevant date and whether or not parties had ceased to cohabit as man and wife, albeit living under the same roof, during the various lockdowns and restrictions.

The main takeaway point for family law practitioners is that each case turns on its own facts, and the more information and corroborating evidence you have to prove your client’s case, the better.