CD v. ND [2024] CSOH 98

Key Issues:

This case revolved around two central issues in the context of financial provision in divorce proceedings:

1. Determination of the Relevant Date of Separation:
   • The parties disagreed on the exact “relevant date” as defined under section 10(3) of the Family Law (Scotland) Act 1985.
   • CD claimed the relevant date was in August 2021, reflecting the date of physical separation when they stopped cohabiting.
   • ND argued that the separation occurred later in March 2023, citing continued financial dependency and interactions until then.
2. Impact of the Relevant Date on Matrimonial Property:
   • The court had to assess how the chosen date would affect the classification of assets and debts as matrimonial property under section 10(4) of the Act.
   • ND’s proposed date significantly expanded the scope of assets considered matrimonial, particularly regarding business interests and savings accumulated during the disputed period.

Background:

• The parties had been married for 12 years before the breakdown of their relationship.
• CD left the matrimonial home in August 2021, after which no reconciliation efforts were made.
• Despite their physical separation, ND argued that financial interdependence continued, with joint accounts remaining operational and ND receiving regular financial support from CD.

Arguments Presented:

• For CD (Pursuer):
  CD contended that the marriage effectively ended in August 2021, as evidenced by the cessation of cohabitation and lack of intent to reconcile. CD further argued that considering a later date would unfairly prejudice their financial position by including post-separation earnings and business growth as matrimonial property.
• For ND (Defender):
  ND maintained that the parties had an ongoing financial relationship and presented evidence of shared financial commitments and communications that persisted until March 2023. ND argued that the later date better reflected the practical reality of their separation.

Court’s Findings:

1. Determining the Relevant Date:
   • Lord MacLean held that the “relevant date” under section 10(3)(a) is the date when the parties ceased to cohabit as husband and wife.
   • The court relied on evidence, including testimonies, financial statements, and correspondence, to determine when the relationship fundamentally ended.
   • The judge concluded that August 2021 marked the cessation of cohabitation, as the parties no longer lived together, and there was no intention to resume marital relations.
2. Impact on Matrimonial Property:
   • Assets acquired or grown after August 2021, including CD’s business profits, were excluded from the matrimonial property pool.
   • Joint financial arrangements, such as the shared account, were deemed transitional and insufficient to establish ongoing cohabitation.

Decision:

The court ruled in favour of CD, establishing the relevant date as August 2021. This significantly affected the division of assets, ensuring that CD’s post-separation earnings and business developments were excluded from the matrimonial property. ND was awarded a share of the assets based on their value as of the relevant date.

Key Takeaways for Family Law:

1. Defining the Relevant Date:
   This case reinforces the importance of demonstrating clear evidence of when cohabitation ceased, as it directly impacts the scope of matrimonial property.
2. Post-Separation Earnings:
   The ruling highlights the court’s reluctance to include post-separation earnings in the division of assets, provided there is compelling evidence of a clear separation date.
3. Financial Dependency:
   While financial interactions post-separation may complicate matters, they do not automatically extend the “relevant date” if cohabitation has ceased.

Relevance to Clients:

This case illustrates the critical role of evidence in defining the separation date. For individuals going through a divorce, understanding the nuances of matrimonial property and preparing robust evidence can significantly influence the financial outcome.

Contact Us:

If you are facing similar challenges in defining your separation date or need advice on financial settlements, Rooney Family Law is here to help. Contact us today for expert guidance tailored to your situation.