Like Michael Caine marshalling the troops to repel the Zulu attack at Rorke's Drift, the front rank defence to a s. 28 claim is the time bar bullet.

The point was taken again, this time in an appeal in MB v JB.

Recognising there isn't necessarily a defining moment, that often a separation can be fluid, the date when the parties ceased to cohabit is an objective one for the judge at first instance to determine.

Rejecting the plea that the action had not been raised timeously, Sheriff Principal Stephen criticised the appellant's 'undue concentration on the words "living together", saying that was both wrong in law and inequitable.

'Strict application of the requirement that cohabitants live together ignores the realities of life. Physical separation is not conclusive or determinative of the end of the relationship'. Other factors must be considered, in this case including public appearances and the failure to take any steps to alter their mutual property affairs.
For a recent example of relevant date arguments in divorce, see HS v FS, where criticism of the Lord Ordinary's focus on the defender's state of knowledge as being a pivotal moment, was rejected by the Inner House.

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