Separation: when does it start?

In recent case law, the Court has considered separation and the factors which determine when two parties are deemed to have separated. This can have wide ranging impacts to each party’s case in respect of financial claims and outcomes.

In a recent case, from 2023, the Judge was asked to determine the date of separation. The parties met in February 2007 and began to live together shortly thereafter, they married in June 2008. The husband left the family home on 16 August 2020, and moved into rented accommodation, and the wife issued a divorce petition on 27 March 2021. The parties did not live together again after 16 August 2020. The husband contended this period was a trial separation and therefore separation was the date of the divorce commencing in March 2021. The wife maintained that the date of separation was the date of the husband’s departure from the home in August 2020. There was financial motivation behind their pursuit of the key date. The wife’s financial position improved significantly after separation. As such, it was in the husband’s interest to have a later date of separation and it was in the wife’s interest to have an earlier date of separation. The wife held shares and options in a business. This business was a lot less successful and worth a lot less in August 2020 than it was in March 2021.

The Judge concluded that the parties had permanently separated by late August 2020 and he did not accept the husband’s argument about a trial separation. The Court looked at the parties’ actions after August 2020. Key factors the Judge pointed to, in disagreeing with the husband, were;

• The husband had transferred all of the bills into the wife’s sole name in August 2020 when he moved out;
• The husband took a 12-month tenancy at his rented accommodation;
• The husband initiated Children Act proceedings shortly after leaving the home.

The Court’s look at the practical arrangements and actions after separation are similar, albeit in reverse, to when the Court is tasked with considering the extent of any cohabitation period prior to a marriage. Defining the length of the relationship can be crucial for one or both parties in respect of their financial claims. Relationship commencement dates, and those for separation, are entirely fact and case specific.

Even with the dates of the relationship defined, it does not mean capital or assets outside of those dates can be entirely ringfenced. For example, the Court can and, has in recent cases, found that post-separation endeavours can have matrimonial and non-matrimonial elements. In the above case, the business was considered 35% matrimonial.

The issue of actual separation date arose in another reported case from 2023. In that instance, the husband had applied for Decree Absolute (the final divorce document) in April 2023. This was over 10 years after the Decree Nisi (the penultimate divorce document) was pronounced on 18 September 2012. The wife opposed the application and asked the court to revoke the decree nisi as she contended parties had, during the 10 years, reconciled. The parties lived apart from 2013 but cohabited for some months after this, spent holidays together, spent time in each other’s home and socialised together. The Judge again looked at the practical arrangements and actions of the parties. He refused to make the Decree Absolute and rescinded the Decree Nisi from 2012 given that there was a material change of circumstances that invalidated the basis on which the Decree Nisi was made. The financial matters are yet to be determined. The huge wealth amassed by the husband between 2012-2020, reportedly over £100 million, will more likely now be included in the Court’s assessment of the matrimonial assets for division between the parties.

Individuals commencing financial remedy proceedings should be aware that periods of cohabitation or quasi-marital relationships that take place before the date of legal marriage can be considered as part of the marriage. This may mean assets generated during this period could be considered matrimonial. As seen in the recent cases above, the Court can also take into account periods of cohabitation or reconciliation at the end of a marriage and even after a divorce application is made. The Court will consider each case on the specific facts.

Specialist legal advice from a member of BDB Pitmans’ family team should be sought if these matters are or may become relevant.