CD against ND (Court of Session)

Factual and Procedural Background

This opinion concerns a divorce and financial provision action initiated by the husband (Pursuer) against the wife (Defender). The central issue addressed is the determination of the "Relevant Date"—the date on which the parties ceased to cohabit as man and wife. The parties were married in America in 1998 and have four children, one of whom is under 16 years old. The family relocated to Australia in 2013 due to the Pursuer's employment, with the Pursuer and one child returning to Scotland in 2016. Between 2016 and 2020, the parties and children maintained some contact and spent time together. The Pursuer argued the Relevant Date was 30 December 2017, while the Defender contended it was 6 January 2020. After a detailed evidential hearing, the court found the Relevant Date to be 6 January 2020.

Legal Issues Presented

1. What is the correct interpretation and application of the term "Relevant Date" under the Family Law (Scotland) Act 1985 in the context of this case?
2. When did the parties objectively cease to cohabit as man and wife, thereby determining the Relevant Date for financial provision purposes?
3. How should the court evaluate conflicting evidence regarding the nature of the parties' relationship and cohabitation status during the disputed period?

Arguments of the Parties

Pursuer's Arguments

• The parties separated on 30 December 2017 following discovery of sexually explicit messages sent and received by the Defender and a heated confrontation where the Pursuer declared the marriage over.
• There was no reconciliation after that date; the parties ceased sharing a bed and engaging in sexual relations.
• Subsequent communications and interactions were transactional and child-focused, maintained solely to preserve the Pursuer's relationship with the children.
• The separation of finances and lack of intimacy support the assertion that cohabitation ended in December 2017.
• Legal advice received suggested waiting two years post-separation before initiating divorce, explaining the delayed proceedings.

Defender's Arguments

• The parties did not separate until 6 January 2020, when the Defender and the younger children left on a cruise, effectively ending cohabitation.
• After December 2017, the parties continued to share a bedroom and engage in sexual relations, including during family holidays.
• Communications between the parties contained gestures of love and affection, consistent with continued marital cohabitation.
• Financial affairs remained largely joint until early 2020, including the Defender’s receipt of share proceeds into a joint account and the Defender’s car finance documents signed by the Pursuer as spouse.
• The parties maintained outward appearances of a marital relationship, including wearing wedding rings and family activities.
• The Defender was unaware of any formal separation discussions prior to 2020 and only sought legal advice after that date.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed and chronological analysis of the parties' relationship and interactions from 2013 to early 2020, focusing on the period after the Pursuer’s return to the UK in 2016. It considered the statutory framework under the Family Law (Scotland) Act 1985, particularly the definition of the Relevant Date as the earlier date on which the parties ceased to cohabit as man and wife.

The court examined extensive evidence including affidavits, oral testimony, text messages, photographs, and family communications. It noted that cohabitation requires living together as husband and wife and is a question of fact assessed objectively.

The court found that despite the Pursuer’s assertion of separation in December 2017, the parties continued to display many outward signs of marital cohabitation: affectionate communications including messages with kisses and hearts; sharing family holidays together with evidence of shared bedrooms and sexual relations; joint financial dealings; and wearing wedding rings. The court also found that the Defender’s evidence and that of the children supported continued cohabitation after December 2017.

The court was cautious about the Pursuer's evidence, identifying inconsistencies and selective disclosures, particularly regarding his interpretation of communications and financial arrangements. It found the Defender’s evidence, despite initial untruthfulness about infidelity, to be generally consistent with objective facts.

Ultimately, the court identified the parties’ separation as occurring when the Defender and younger children left on a cruise on 6 January 2020 and the Pursuer returned to Scotland shortly thereafter. This date marked the cessation of cohabitation as man and wife.

Holding and Implications

The court held that the Relevant Date is 6 January 2020.

This decision establishes the date on which the parties ceased to cohabit for the purposes of financial provision on divorce under the Family Law (Scotland) Act 1985. The court’s ruling affects the valuation of matrimonial property and the division of assets accordingly. No broader precedent beyond the application of established legal principles to the facts is set. The ruling resolves the dispute between the parties on the timing of their separation and provides a factual basis for subsequent financial determinations in the divorce proceedings.