Why the date of separation matters when couples split

Whether you are married or in a cohabiting relationship, one of the first things your solicitor will focus on during your initial meeting will be to establish the date you separated from your spouse or partner.

In divorce, the date of separation is important because the value of matrimonial property will be determined on the date you separated. In essence, you are looking to obtain the balance sheet of the marriage at the date of separation – that is the total of all assets which make up the matrimonial property after deducting any debts.

If you are cohabiting, when you cease to cohabit is critical because you only have one year from the date you separate to bring your claim to court. If you fail to meet this deadline, the financial claim you may have against your former partner will fall.

How then is the date when you stop cohabiting established?

In many situations the date will be obvious and not subject to dispute.

But sometimes parties to a relationship will have differing views as to when a relationship broke down. A couple may still live in the same house but have stopped cohabiting for legal purposes long before one of you moves out.

The issue will be determined objectively so your solicitor will ask you questions about the nature of your relationship and changes in the normal pattern of behaviour. This will include sleeping and eating arrangements, holidays and social activities, and whether there was any change in the usual financial arrangements which operated between you.

For couples in a cohabiting relationship which may be breaking down it is imperative to get early legal advice on this issue to alleviate the risk of losing your right to make a claim against your ex.

If you have any questions following a separation, please contact our Roger Mackenzie at rlm@wjm.co.uk

Inflation bites twice on separated families

As the cost of living crisis hits households across the country, separated families may need to revisit maintenance arrangements agreed at a time when inflation was subdued.

When married couples split spouses owe a duty of financial support to one another. This will often see the higher earning party provide maintenance or aliment in the form of monthly payments to the spouse who requires support to meet their needs.

Typically, both spouses will draw up a schedule of income and outgoings to assess the needs of the receiving party and the resources of the paying party to meet any shortfall. Frequently where children are involved the dual obligations to maintain a spouse and children will be wrapped up in one payment, or perhaps by continuing to meet certain costs of the household where the children mainly reside, such as the mortgage and council tax.

If the arrangement or court order was reached based on costs which have since spiralled it may be possible to seek to vary the level of aliment to be paid by reference to a new schedule of outgoings.

However, if the paying party also has mounting fuel and food costs, but without a comparable increase in their available income, they may argue they do not have the resources to offset the rising costs of living which impacts on both households.

Some long-term maintenance arrangements will include reference to regular review with reference to the Retail Prices Index or Consumer Prices Index. This can shelter the receiving party from inflationary pressures.

Financial support is usually one of the most pressing issues to be agreed when couples separate. Agreements reached in the early days after separation can have important consequences further down the line and early advice on your financial requirements or obligations can be crucial in setting the stage for the longer term arrangements which follow.

If you have any questions about financial support or child maintenance following a separation, please contact our Roger Mackenzie at rlm@wjm.co.uk

Cohabitant claims

Couples who live together and then separate can make financial claims against each other when the relationship ends. The law provides limited financial provision for couples who lived together. However, it does not put couples who live together in the same position as married or civil partnership couples.

Until 15 years ago, couples who lived together in Scotland had no legal entitlement to make financial claims against each other if their relationship ended. They were then left trying to make a claim under other areas of law, such as unjustified enrichment.

A cohabitant has one year after separation to reach an agreement on financial provision and for that agreement to be implemented. If that does not happen, to preserve your claim, court proceedings have to be raised against the other party. Otherwise, you lose your entitlement to make a claim.

The claim can be for a capital sum to be paid now or over a period of time.

In addition, you can be awarded a sum of money of a specified amount in relation to the future costs of caring for children of the relationship. This is in addition to any child support you receive from your former partner.

In assessing your claim, you have to prove that you have suffered “economic disadvantage” in the interests of your former partner or children of the relationship, or your former partner has gained a financial advantage as a result of contributions you have made to the relationship. Contributions do not need to be financial. Quite often they are not financial. Giving up a career to stay at home and care for children is a significant non-financial contribution.

You have to make out an argument for your claim. Unlike married couples, there is no pool of cohabitation property which is built up during the relationship which is then shared at the end of the relationship.

Couples who live together do not have any obligation to financially support each other. In addition, unlike married couples, you cannot ask for property to be transferred to your name or for a pension to be shared.

Previously, it was thought that cohabitant claims were limited. However, a recent case made an award to a cohabitant in excess of £900,000.

On death, couples who live together are provided with a right to make a claim if there is no will. The claim has to be made within six months of death and the couple must have been living together prior to death. This means an action has to be raised within six months of your former partner’s death. The claim will be considered after any claim by the cohabitant’s surviving spouse or civil partner. The court will consider the claim alongside any claim made on the estate by the surviving children. The maximum amount a cohabitant can claim or receive will be not more than what would have been available to a surviving spouse or civil partner. If successful, the award can be a capital sum or property transferred from the deceased’s estate.

The law in relation to cohabiting couples who live together and then separate is currently being reviewed by the Scottish Law Commission. The Commission is due to report later this year. It is envisaged that the law in relation to cohabitants will be substantially reformed and a new Act will go before the Scottish Parliament, next year which will provide greater rights for cohabiting couples at the end of their relationship.

More information

WJM Partner Roger Mackenzie is here to help with any of your cohabitation queries. Get in touch on 0141 248 3434 or email rlm@wjm.co.uk

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Roger Mackenzie

Why the date of separation matters when couples split

Why the date of separation matters when couples split

Why the date of separation matters when couples split

Inflation bites twice on separated families

Inflation bites twice on separated families

Inflation bites twice on separated families