At XK Solicitors, we are often asked: “When does separation legally begin?” The answer matters because the relevant date (the date of separation) fixes when matrimonial property is valued and when the clock starts ticking for divorce.

The Legal Definition of Separation

Under section 10(3) of the Family Law (Scotland) Act 1985, the “relevant date” is:

• the date when spouses ceased to cohabit as husband and wife, or
• a date the parties agree on in writing.

This means that separation does not depend on when friends, family, or colleagues find out. It depends on when the substance of married life came to an end.

What Do Courts Look At?

Scottish courts consider whether the couple were still living together as spouses. Factors include:

• Living arrangements – Has one person moved out permanently, or do they still share a home?
• Finances – Do they still share bank accounts, bills, or financial support in the way a couple would?
• Daily life – Are they still cooking, shopping, or socialising together as a couple?
• Intimacy – Has the marital relationship broken down emotionally and physically?
• Intention – Did one or both parties decide the marriage was over?

It is possible for couples to live under the same roof but still be separated if they are no longer living “as husband and wife.”

Case Law Guidance

• Banks v Banks (2005 Fam LR 72): Separation occurs when the parties stop living together as husband and wife, even if they still attend family events together.
• Livingstone-Stallard v Livingstone-Stallard [1974] Fam 47: Cohabitation is more than sharing a roof – it includes companionship, support, and a shared life. If you have gone from sharing a life to sharing a roof, you are likely separated.

Common Examples

• One spouse moves abroad or to another city: If the move is permanent and the couple no longer live as spouses, the separation date is when they moved.
• Sleeping in separate bedrooms in the same house: If there is no longer a shared marital life, this may count as separation.
• Maintaining appearances for family: The law focuses on reality, not appearances. Even if the couple act like a unit in public, they may still be legally separated if they no longer cohabit.

Why the Date of Separation Matters

• It sets the relevant date for valuing and dividing matrimonial property.
• It affects the timeline for divorce under the Divorce (Scotland) Act 1976 (one year’s separation with consent, or two years without consent).
• It can make a significant difference to financial outcomes, especially if property or pensions change value after separation.

Key Takeaway

You are legally separated in Scotland from the date you and your spouse stop living together as husband and wife, not from the date others find out, or when divorce papers are filed.

How XK Solicitors Can Help

At XK Family Law Solicitors Aberdeen, we:

• Advise on the relevant date of separation in contested cases.
• Guide clients through financial disclosure and division of matrimonial property.
• Support clients in negotiating or litigating separation and divorce fairly.

If you are unsure about your legal separation date, contact us for clear advice.

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