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 can be many reasons why the date of separation can prove crucial, however the two main ones are as follows:
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 prior to the wedding date, in circumstances they consider permanent provided that it moves seamlessly into marriage.
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 relevant for the matrimonial and non-matrimonial property distinction.
It is extremely important since an entirely different approach might be taken to premarital wealth – a type of “non-matrimonial” property – when compared with post-marital wealth, most likely “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 through to the date of separation.
Wealth accumulated following the date of separation would be non-matrimonial property.
Non-matrimonial property is routinely only taken account of if it needs to be deployed towards meeting the other spouse’s reasonable needs.
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 efforts to persuade his or her spouse to reconcile and continue in the marriage.
If the other spouse considers the marriage to have broken down and wants to separate, they will not be prevented from doing so – a person cannot force their spouse 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 the separation might be said to 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 every 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 difference as 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 cases where the date of separation is a significant issue, we take care to establish all of the relevant facts and develop a clear strategy that is consistent with both the available evidence and our assessment of how the court is likely to determine 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.