When divorcing in England and Wales, it’s important not to overlook the need to address the division of assets and close off the financial claims a couple will have against one another. The date of separation is crucial when looking at this.
Why is the date of separation important?
There are at least two core reasons why the date of separation can prove so crucial:
1. Length of the marriage
The date of separation will have a bearing on the length of the marriage.
For the purposes of assessing financial claims, the length of marriage will usually begin when a couple begin cohabiting, often prior to the wedding date, in circumstances they consider permanent.
It will end on the date of separation. This occurs regardless of when the marriage takes place and when the divorce is concluded.
The date of separation for these purposes is key.
2. Matrimonial and non-matrimonial property on divorce
The date of separation also serves as a barrier, separating assets and wealth accumulated pre-marriage and post-marriage. This is the matrimonial and non-matrimonial property distinction.
This is extremely important since an entirely different approach is often taken to premarital wealth – often categorised as “non-matrimonial” – when compared with post-marital wealth, also termed “matrimonial property”.
The starting point for wealth accumulated following the date of cohabitation, i.e. matrimonial property, is an equal division. This carries right through the timeline of the marriage to the date of separation.
Wealth accumulated following the date of separation would be non-matrimonial property.
Non-matrimonial property is routinely only taken an account of if it has to be taken account of to meet the reasonable needs of the other spouse.
For this reason, the date of separation can prove crucial.
When is the date of separation?
The date of separation is most commonly when a couple start to live apart. If a husband or wife move out of the family home on a permanent basis, the date they do so would routinely be considered the date of separation.
It is also possible for a couple to separate whilst living under the same roof. Sometimes this will be necessary if they cannot afford to separate in the physical sense. They may sleep in separate rooms and live separate lives at the same property, most often whilst a divorce is being progressed and concluded.
Emotionally, they might consider themselves separated, but physically they still occupy the same house, albeit not the same space in the true sense.
What if there is disagreement over the days of separation?
It will only take one of the two spouses to consider the marriage is irretrievable be broken down for it to have irretrievably broken down. The other spouse who wants the marriage to continue might make all manner of valiant effort to persuade his or her spouse to reconcile and continue in the marriage. Where this happens we do our very best to support this, whilst protecting our client’s position wherever possible.
If the other spouse considers the marriage to have broken down and wants to separate, they will not be prevented from doing so – the other spouse cannot force a couple to stay together. Where there is ambiguity around the date of separation this emotional focal point can sometimes be a factor, and it will be necessary to drill a bit deeper to understand the underlying emotional landscape that existed at the various points when separation might have occurred.
Sometimes there can be consensus around the fact that the marriage has irretrievably broken down, but a disagreement over when it happened. Only if the question is an important one that is likely to make a difference to the outcome of the case, we will need to go into some detail around the circumstances both prior to and at the point of the competing separation dates. There can sometimes be a wealth of contemporaneous evidence that has inadvertently been accrued that will distil the exact circumstances and help support our client’s position. Knowing where to look and what to look for can make a massive difference here.
Is the date of separation important in case?
No. In fact, in quite a few cases, it will make little difference. The sake of a week or a month will make no matter to how the division of finances is dealt with. In those situations, it is not a worthwhile exercise to focus on the circumstances and timing of the separation. The fact that the couple have separated is the main takeaway.
In those cases where the date of separation is important however, we make sure we are fully conversant with all of the relevant facts and align them with the strategic position to fully ensure that the approach taken to the case is consistent with how, based on the evidence, we consider the courts are likely to interpret the circumstances and the date of separation.
It is important that if there is ambiguity around this point and it is going to be a crucial issue in any given divorce, advice is taken from solicitors who know how to approach it, understand the right questions to ask and are fully conversant in the likely approach the court will take.
If you require advice on these issues, our Family team would be happy to help.