The importance of the date of separation

A financial settlement on divorce essentially involves the division of the ‘matrimonial assets’, i.e. those assets that were acquired during the marriage, through the joint efforts of the parties to the marriage.

Accordingly, assets that were acquired before the marriage or after it ended (the latter often referred to as ‘post-marital acquest’) will usually remain the property of the party who acquired them.

But that can raise the question: when did the marriage end?

The law will generally recognise that the marriage ended on the date that the parties separated, but there is a problem here in that there will often be no record of the date of separation, and the parties will often not be able to agree when it occurred.

How this can play out in court was demonstrated in a recent case, which involved a rather extreme discrepancy between the parties as to when the separation took place.

The case concerned a couple who were married in 1983 and had two children, now aged 33 and 30.

From about 2003 the husband spent his working week away from home, mostly doing lucrative work in Germany.

In 2010 the husband began a relationship with another woman in Germany. It appeared that he lived with her for approximately two years in the accommodation he had in Germany, until that relationship broke down.

During the relationship the husband rarely visited the wife or the children in this country, but after the relationship ended the life of the husband and wife resumed as it was before.

The wife knew about the relationship, but said that she had forgiven the husband and “took him back”.

In 2017 the husband commenced a second relationship with another woman. The relationship of the husband and wife, however, continued as it had done since 2012.

However, in 2021 the husband began a third relationship with another woman. On this occasion, he chose to exercise no discretion, introducing this woman to his children. As far as the wife was concerned, that was the final straw – in her words: “Three strikes and out”. She consulted solicitors, with a view to divorce proceedings.

In the subsequent financial remedy proceedings the husband sought to argue that the parties had separated in 2010 and that, accordingly, everything he earned after that date was ‘non-matrimonial’.

The judge did not agree. He found that the parties did not separate in 2010. The marriage continued thereafter, and did not end until 2021. Accordingly, everything that the husband earned between 2010 and 2021 was matrimonial, and therefore should be divided between the parties.

The moral of the story is, perhaps, that if you think the date of separation may be important then you should take steps to have it recorded and agreed if possible, for example in a separation deed.

You can read the full report of the case here.

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Image: Kateryna Onyshchuk /