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A crucial factor to establish, for any separating couple, is the date you view the marriage / partnership to be at an end as this is when the courts will take a snapshot of your financial situation for settlement purposes. The date of separation is more commonly known in Family Law as the ‘relevant date’ and is vital to enable parties to negotiate a fair and equitable division of the net matrimonial property (‘matrimonial pot’).  In many cases there will be a clear date of separation and parties can confirm the relevant date prior to obtaining legal advice on separation/divorce.  However, if parties are not able to agree and there is a significant discrepancy between the two dates proposed by parties, this may significantly affect what is included within the matrimonial pot.

In these circumstances it may see parties having to litigate over the matter and raise divorce proceedings in court. The relevant date is also important for couples who are not married and wish to sort out the finances of the relationship.

We are all too familiar with the phrase “We were on a break!”, but what does this really mean? It all comes down to whether a court will view the parties continuing to be linked to each other in some way. So, what factors would a court consider when reaching their decision on whether parties are potentially still married or whether parties have indeed separated? There is not one answer to this and even if one party has decided the marriage is at an end and communicates this to the other, this may not be enough to establish the relevant date. Some of the factors that may be considered are:

1. Residence of parties – whether parties continue to reside under one roof or if one of the parties has moved out. Even if parties are in separate bedrooms, if they continue to prepare and eat meals together or share the household tasks, this could be relevant.
2. Are parties still financially linked/dependent on each other? Do they continue to share the expenses of the household? Do they continue to operate joint bank accounts?  If parties’ finances are intrinsically linked, this could be viewed as parties continuing to act as husband and wife.
3. Do parties continue to socialise together or spend holidays together?

Significant changes to parties’ routine during their marriage is also a key consideration for the court.

If you are separating from your partner, try and compile evidence to correlate your side of the story and prove when you split up. The value of assets in the matrimonial pot can change significantly over a period of time, with assets potentially not included if they were later acquired. Likewise, generally speaking anything acquired before you were together will not be regarded as matrimonial property.

Parties should be aware, if agreement cannot be reached, the cost of litigating over such a matter will be costly and have a significant impact on any final settlement of the finances. At Macnabs, we are happy to help advise clients through all aspects of separation and divorce and help find amicable solutions in relation to this aspect of law.