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Is it really over? How does the law decide when a couple has separated?

One of the first questions a person is likely to be asked when they sit down with a solicitor to discuss separation is “when did the relationship end?”

The date can be significant for a number of reasons, whether you are married or not. If you and your partner were married then the date on which you separated might determine when you can actually ask to be divorced and, for most matrimonial assets, it will be their value at the date on which they separated that will be used for the purposes of deciding what will be a “fair” division of their matrimonial assets. If you and your partner were not married, then at present you only have one year from the date that the relationship breaks down to raise a court action to pursue your claim, otherwise the claim will be lost.

In some cases, it can be hard to identify when the specific date is that the relationship ends. In Scotland, there is no equivalent to the decree nisi that a couple can obtain in England which formalises their separation before divorce. It is often said that whether a couple are still together is a “question of fact”. What that means, in effect, is that there is no one thing that has to happen or not happen in order for a couple to be deemed to have separated and it will be judged on an examination of every aspect of the couple’s relationship and lifestyles.

It is an issue which was considered an appeal decision published earlier this month in a case called McLeish v McLeish. In this case, it was argued that because the Sheriff had decided that the husband was only staying overnight at his wife’s property “at [her] invitation”, they must have separated at an earlier stage. The suggestion was that, if he needed her permission to be at the property, they could not be said to be “living together”.

The court rejected this argument. It emphasised that there is no fixed, exhaustive check list of things to be taken into account when assessing whether or not a couple has separated and that each case will be decided on its own fact and circumstances. Here, the Sheriff had also considered the couples’ financial arrangements; their sleeping and living arrangements; their sexual relations; their holiday plans; their having refurbished a property in Spain together; their social lives and socialising and attending events together; the support that they provided to each other; and the fact that they presented themselves as a couple to others. The appeal court held that he was right to do that, and entitled to come to the decision which he had.

This case follows on from a decision in a case in 2021 called M v M, where the Sheriff had to make a decision about when a couple had split up. When doing so, she emphasised that whether one or both of the couple think that they are still together does not necessarily decide the issue. In particular, the fact that one of the couple was still committed to saving the relationship did not mean that it was not over. She compared a number of different aspects of the relationship before and after the date which she decided to have separated on, including the nature of their relationship; how much time they spent together; their sharing a bed together and having sexual relations; their eating meals together; the support and affection they showed to each other; and their working together on a business project.

How, then, can a couple work out if they have separated or not? The case law is very clear that it is dangerous to try to stick to and apply a rigid checklist, and every couple’s own situation should be looked at carefully and on its own merits. It’s necessary to take into account what the relationship was like while the couple were definitively still together, and look at how that compares to the situation at the time when they might separated. While the following is certainly not a complete or definitive list, the type of things that you might expect to be relevant are:-

  • What do other people think? Are the couple still acting like they are together and holding themselves to others as being a couple?
  • To what extent do the couple socialise together?
  • Are they supporting each other financially, emotionally and practically?
    Do they still have joint financial arrangements and/ or are they still maintaining or taking on joint financial commitments?
  • Do they still share a bed together and are they still having sexual relations?
  • Is their evidence of them still making plans for a joint life together?
  • How are they behaving towards each other? Has it changed?

These are just some of the questions which you can expect a court to ask itself if it is being asked to deal with the difficult and very personal question of whether a relationship can really be said to be “over” or not.

If you are going through a separation and want to discuss your options, get in touch with a member of our family team today.