CD v ND [2024] CSOH 98 (Outer House, Court of Session)

Relevant date dispute – when cohabitation truly ends for valuation of matrimonial property

Background

In this key Scottish divorce decision, Lady Wise examined when spouses are deemed to have ceased cohabiting for the purpose of valuing matrimonial property under the Family Law (Scotland) Act 1985. The issue is crucial in financial provision and division of matrimonial property cases, as shareholdings, pensions and savings can change substantially depending on the relevant date chosen.

The parties married in 2006 and separated in 2023. The husband argued that cohabitation ended in late 2022 when he moved into a rented flat. The wife contended that they continued to live “under one roof” until March 2023, sharing bills and presenting publicly as a married couple. The court had to determine which date more accurately reflected the end of cohabitation.

Key legal issues

• When spouses are treated as having ceased to cohabit under section 10(3A) of the 1985 Act;
• Whether emotional separation or physical absence alone ends cohabitation; and
• The financial consequences of selecting an earlier or later relevant date for valuation.

Evidence and reasoning

Lady Wise stressed that the question is objective and fact-sensitive. Evidence showed that although the husband sometimes stayed elsewhere, he continued paying household bills and referring to the family home as his address. The couple still attended social events together and maintained joint accounts.

The judge relied on Jacques v Jacques 1997 SC (HL) 20 and Ferguson v Ferguson to emphasise that the whole circumstances must be considered. Emotional withdrawal or sleeping separately does not, by itself, mark the legal end of cohabitation if shared domestic and financial life continues.

Decision

The court fixed the relevant date as 1 March 2023, finding that until that point the parties had continued a joint household. Valuations of the husband’s business and pensions were to be calculated at that later date, which more accurately reflected the ongoing joint finances. The earlier date advanced by the husband would have reduced the wife’s share unfairly.

The judgment underscores that a couple may still be “cohabiting” in law even if they occupy different rooms or temporary accommodation. The key is whether there is still a shared domestic economy and presentation to the outside world as spouses.

Rooney Family Law commentary

At Rooney Family Law we frequently act in cases where separation happens gradually. This case highlights the importance of documenting the practical end of cohabitation — cancelling joint bills, changing addresses, and recording when finances become separate. These steps prevent later disputes about asset values and relevant dates.

For individuals negotiating a financial settlement, identifying the correct relevant date can make a significant difference to the outcome. Our divorce lawyers in Scotland can guide you through the process, ensuring valuations and settlements are based on accurate evidence of when separation legally occurred.

Key takeaway

“Separation under one roof” requires more than emotional distance. Courts will look at the totality of domestic and financial conduct to decide when cohabitation truly ends. If you’re separating, take clear practical steps to show that the relationship has ended — especially where substantial assets, pensions or business interests are involved.

Citation: CD v ND [2024] CSOH 98 (Outer House, Lady Wise, 4 December 2024)