Objective Determination of the “Relevant Date” for Cohabitation in Scottish Divorce Settlements

Introduction

This commentary examines the Inner House decision in CD v ND ([2025] CSIH 12), delivered by Lady Wise on 9 May 2025, concerning the proper identification of the “relevant date” for valuing matrimonial property under the Family Law (Scotland) Act 1985. The pursuer (husband) appealed against the Lord Ordinary’s finding that cohabitation did not end until 6 January 2020, whereas he contended that it had ceased as early as December 2017 or, in the alternative, by March 2018. The defender (wife) maintained that final separation occurred on the January 2020 date when she and the younger children went on a cruise without him.

Key issues:

Statutory definition and objective test for “relevant date” under section 10(3) of the 1985 Act;
Evaluation of prolonged, intermittent cohabitation and the moment when parties “consciously let go” of their marital relationship;
Standards for judicial conduct in proof—particularly the boundary between legitimate questioning and unfair intervention; and
Appellate scope to challenge findings of fact, credibility assessments, and alleged errors of law.

Summary of the Judgment

The Inner House refused the husband’s reclaiming motion and affirmed that the “relevant date” was 6 January 2020. The Court held:

Section 10(3) requires an objective assessment of the earlier of the date of last cohabitation or service of summons;
The Lord Ordinary did not err by focusing on the period from August 2016 (when the husband and one child returned to Scotland) to January 2020, nor by failing to select between only the parties’ two proposed dates—he examined the full body of evidence to see if any earlier date could be fixed;
Although the Lord Ordinary adopted an “interventionist” style and made several unorthodox interruptions, his conduct did not vitiate the fairness of the nine-day proof or preclude counsel from exploring any line of cross-examination;
Findings on credibility, sexual intercourse in Florida in July 2018, and the parties’ shared matrimonial bed on multiple occasions were open to the Lord Ordinary on the oral and documentary evidence;
Appellate interference with factual findings will be allowed only if no reasonable judge could have reached the decision or if there is material legal error; none was made here.

Analysis

Precedents Cited

Family Law (Scotland) Act 1985, section 10(3): Defines “relevant date” as the earlier of cessation of cohabitation or service of summons.
Banks v Banks (2005) Fam LR 116 – Lord Justice Clerk Carloway’s criteria for identifying change in nature of cohabitation; emphasises no exhaustive list of factors.
HS v FS [2015] SC 513 – Affirms the objective test and reliance on Banks; sets high threshold for appellate intervention (“no reasonable judge” test).
McGraddie v McGraddie [2014] UKSC 12 – Appellate deference to first-instance credibility and factual findings; error must be material.
Yuill v Yuill [1945] 1 All ER 183 – Classic statement on the risk of a judge “descending into the arena” and compromising impartiality.
K v L (Children: Fairness of Hearing) [2023] 4 WLR 61 – Modern authority on permissible judicial intervention in evidence; contrasts with extreme cases requiring rehearing.

Legal Reasoning

The Court structured its reasoning around three main challenges:

Errors of Law: The husband argued that the Lord Ordinary wrongly confined his inquiry to the parties’ proposed dates (December 2017 vs. January 2020) and failed to assess objectively whether any other date was supported by the evidence. The Inner House held that the Lord Ordinary had properly:

Considered the statutory test (1985 Act section 10(3)) and the objective guidance in Banks & HS v FS;
Reviewed the parties’ affidavits and nine days of oral evidence spanning 2013–2020;
Concluded that no date earlier than January 2020 was objectively supported, having weighed contemporaneous messages, holidays, shared bedrooms, property purchases, and communications.

Conduct of the Proof: The husband alleged unfairness under Yuill, pointing to 230 judicial interventions (174 non-routine). The Inner House analysed a representative sample of eight challenged interventions and concluded:

Some interruptions were unorthodox and risked suggesting preconception, but counsel remained free to pursue all relevant lines of questioning;
There was no hostility or rudeness, no pattern of shutting down adverse evidence, and no apparent bias;
Different judicial styles are permissible; occasional over-intervention, standing alone, did not vitiate the hearing in context of lengthy proof.

Assessment of Credibility: The husband claimed inconsistent treatment of the wife’s affidavits and oral evidence, and rejection of two of his witnesses. The Inner House reaffirmed that credibility findings are pre-eminently for the Lord Ordinary (Thomas v Thomas 1947; McGraddie) and that:

Accepting the wife’s admission of infidelity in a second affidavit did not mandate rejecting all her testimony;
Observations of demeanour, corroboration by documentary record (texts, holiday itineraries), and children’s evidence provided a rational basis for believing continued cohabitation until January 2020;
Rejection of the husband’s fall-back position (March 2018) was open to the Lord Ordinary given his holistic evaluation of affectionate messages and sexual history.

Impact

This decision will guide future divorce actions in Scotland by:

Reinforcing that the “relevant date” question is fact-sensitive and must be determined objectively on the full body of evidence, not limited to dates advanced by the parties;
Confirming that appellate courts will seldom disturb first-instance findings on cohabitation and credibility absent clear irrationality or material legal error;
Clarifying the permissible scope of judicial intervention in preliminary proofs: judges may interrogate witnesses for clarity but must avoid the appearance of pre-judgement or hostile cross-examination;
Encouraging parties to prepare comprehensive evidence of living arrangements, communications and mutual conduct where intermittent cohabitation complicates the valuation of matrimonial property.

Complex Concepts Simplified

Relevant Date: Under Scottish divorce law, assets to be divided are valued at the “relevant date”—the earlier of when the couple truly stopped living as spouses or when divorce papers are served.
Objective Test: The court must look at all actions, messages, holidays and shared routines to decide when the marriage relationship effectively ended, ignoring either party’s subjective label of “separation.”
Cohabitation in Fact: Not mere physical proximity but living together with the habits and interactions of a married couple—sharing a bedroom or bed, holidaying as a couple, exchanging affectionate messages.
Reclaiming Motion: Scottish equivalent of an appeal from a first-instance civil decision; the Inner House reviews alleged errors of law, unfair procedure or factual irrationality.
“Descent into the Arena”: Metaphor for a judge crossing the boundary between neutrally observing proof and actively interrogating witnesses as if part of the dispute, risking impartiality.

Conclusion

The Inner House’s decision in CD v ND establishes that the identification of the “relevant date” for matrimonial property valuation is a holistic, objective exercise, anchored in the factual matrix of cohabitation and mutual conduct. Judges retain wide latitude in managing preliminary proofs, including intervening to clarify evidence, but must remain vigilant against creating an impression of pre-conclusion or partiality. Appellate courts will defer strongly to Lord Ordinary findings on both law and fact unless there is clear material error or manifest unfairness. Practitioners should therefore marshal detailed chronological evidence of shared life events and remain alert to the risk that a seemingly minor incident—such as a holiday without one spouse—can crystallise the end of cohabitation for valuation purposes.