A recent case on determining the relevant date for financial provision illustrates how the question of when parties ceased to cohabit can be a difficult one of fact

We don’t often see reported cases around relevant date disputes, and particularly not ones that have gone to appeal, but in McLeish v McLeish [2022] SAC (Civ) 12 the court was invited to hear evidence on the couple’s living arrangements so as to determine what date would be applied to determine the date of valuation of their net matrimonial property, for sharing. There was a lengthy gulf between their two dates, and we can assume there was a considerable financial implication.

Parties to a marriage shall be held to cohabit with one another, only when they are in fact living together as man and wife. Under the legislation, the relevant date is defined as the date on which the parties ceased to cohabit. Case law has provided dicta in relation to relevant factors that the court may take into account in the event of a dispute, such as the parties’ living, sleeping and financial arrangements, how they carry out domestic duties, how they socialise together, practical and emotional support, and presenting themselves as a couple. 

Reviewing findings in fact

At first instance in McLeish, the sheriff had found in favour of the wife’s argument that the parties had continued to live together until 2019 after the husband had left the family home in 2016, and that his attendance in her home by invitation did not detract from continued cohabitation.

The husband appealed, arguing that the sheriff had erred in law by making findings in fact that the couple cohabited until 23 January 2019. His position was that while he did regularly stay overnight in the wife’s property, he did not have a key, attended by invitation and the parties had ceased to cohabit on 22 October 2016. It was submitted by the husband that there could be “no cohabitation without habitation”, and that attending someone’s property by invitation did not constitute habitation: an essential requirement of “in fact living together” was that the place (or places) where the parties were said to be living together were fully accessible to both parties. 

In a cross-appeal the wife maintained that there was no material before the sheriff to support a finding in fact to the effect that the husband stayed overnight at her property regularly “at her invitation”. 

The judgment confirmed that the intentions of the parties were not determinative, and matters had to be looked at objectively. There was no requirement for either party to communicate to one another that the relationship was over, and the ultimate determination of the issue had to depend on the particular circumstances of the case. 

It was observed that there was no suggestion by the husband that any material factor was left out of account by the sheriff. The sheriff had made findings in fact on a number of relevant factors, including residence at the wife’s property and elsewhere, financial arrangements, sleeping and living arrangements, sexual relations, holidays, refurbishing their property in Spain, socialising, attending events, practical and emotional support and presenting themselves as a couple. The SAC observed that the sheriff had the benefit of hearing evidence on these relevant factors over the course of six days. In the absence of some identifiable error, such as a material error of law, or the making of a critical finding of fact which had no basis in the evidence, or a demonstrable misunderstanding of the relevant evidence, or a demonstrable failure to consider relevant evidence, the SAC confirmed it would interfere with the findings in fact made at first instance on the basis that the sheriff had gone plainly wrong, only if it was satisfied that the decision could not reasonably be explained or justified. The husband’s appeal was refused on the basis that the sheriff had made no error of the type which would entitle the Appeal Court to interfere with his decision.

Contrasting outcomes

However, and arguably sitting rather uncomfortably with the refusal of the husband’s appeal, the SAC was persuaded that there was merit in the wife’s submission that the sheriff erred in finding in fact that the husband stayed overnight at the wife’s property “at the wife’s invitation”, and it was prepared to overturn the sheriff’s decision in that respect. The judgment notes that the wife’s clear evidence was that the husband’s attendance overnight at her property was not by invitation and that the sheriff had accepted the wife’s account in relation to the marital arrangements and living arrangements over the husband’s, where his evidence differed from or contradicted hers. On that basis, the SAC found that the sheriff had gone plainly wrong in a manner that could not be reasonably explained or justified. 

It is interesting to see the contrast in how the SAC treated the appeal and cross-appeal and in the outcomes for the parties. This case highlights that in some instances it can be quite tricky to determine when cohabitation ceases where the parties continue to respect close ties on social, physical and financial arrangements even though they have separate accommodation.  

The Author

Ellen Crofts, senior solicitor, Morton Fraser LLP

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