When is my separation legal?

A question that often comes up  during a first meeting is when and how a separation becomes “legal”. 

This is a good question – when a couple marry they are entering a marriage contract and so it is only natural to question how that is viewed if the marriage ends and before divorce.  People might come to us with the understanding that they need to be divorced to be legally separated, or ask if there is a way to legally separate without actually getting divorced.

So, when is a separation “legal”..?

Defining legal separation

In Scotland, the legal definition of separation is based on the “relevant date.” This is either:
•    The date on which the couple ceased to cohabit, or
•    The date of service of the court papers starting a divorce action
For most couples, the relevant date is when they separated and that is defined as when the parties to a marriage stop living together as man and wife.
This means that a separation is deemed legal when a couple’s married life comes to an end. It is not only on divorce or when the couple decide to tell their friends and family and the couple don’t need to stop sharing a household with one another.  No official court filings need to take place for this to happen.  However, for the separation to be clear, there is usually an alteration around how they organise their lives together.

What does separation look like?

How one couple choose to separate may look very different to another couple.  In looking at when a couple ceased to cohabit as husband and wife and if this is unclear from the couple’s perspective, the factors which are relevant are as follows:
•    Sleeping and living arrangements - whether the couple still lived in the same house or shared a bed. 
•    Marital relations - whether the couple continued to have marital relations or if this stopped at the relevant date.
•    Financial arrangements – whether there is any shift in the financial arrangements.
•    Holidays – whether the couple still go on holiday together.
•    Socialising – whether the couple still socialise together and act like they are together.
No one factor is determinative in identifying the relevant date. Clear conversations around separation are often key to establishing that separation has occurred.  

Reconciliation

If a couple reconcile for a short period following their separation, this will not necessarily put the relevant date on hold – there is a specific rule on this.

If a couple separate for 90 days or more then reconcile for a total of 90 days or less, the initial date of separation still stands and the period of reconciliation would be ignored. If this doesn’t apply, the relevant date will be the date the couple later separates .

Why is any of this important?

In a Scottish divorce, the relevant date is important for two reasons.  The relevant date:-
•    Is the date for establishing and valuing the matrimonial property to be shared between the couple; and 
•    Sets the timeline for when the parties can apply for divorce on one of the time-based reasons for divorce

Is separation the same for unmarried couples?

For couples that have chosen to live together and not marry, the current legal definition of when their cohabitation ends are the same as a married couple.   There is no formal legal process required to bring cohabitation to an end.

Judicial separation 

In Scotland, couples can also apply to the court for ‘judicial separation’ which would allow them to live apart without drawing an end to the marriage. Judicial separations are rare as all other responsibilities and rights arising from marriage continue and most separating couples therefore proceed directly towards divorce.

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