In every initial consultation, one of the first questions I ask my clients is when they separated from their partner. Their response is usually definitive as they have an idea when this happened. They may have had a conversation or one of them moved out but sometimes I am asked when will the court say we separated or when should I say we separated. 

Why is your separation date important?

The date upon which you separate from your spouse is highly relevant for several reasons and the key ones are as follows:

1. Establishing the length of the marriage 
2. Identifying non-matrimonial assets 
3. Under the current divorce law, there are 3 separation factors that a spouse can utilise to start divorce proceedings and claim that their marriage has irretrievably broken down. These are 2 years separation with the other’s consent, 2 years desertion and 5 years separation. 
4. For tax purposes

So, when did you separate?

You must be able to establish that cohabitation has ceased and that you are no longer living with your spouse.  No longer living with your spouse does not always mean there has to be a physical separation as you may very well still be living in the same property, but your lives are operating independently from one another.

Where spouses do continue to live under the same roof, the question is one of whether there is a sufficient degree of separation and this will depend on their living arrangements. Has the relationship ceased? For example, are they still doing things together as a family? Are they having meals together? Do they still share the same bed? Are they effectively living in separate parts of the house? By these actions, the spouses can be seen to be living together or separately.

It is usually possible to pinpoint a time at which a spouse began to live apart. However, difficulties can arise where, for example, one spouse has gone to look after his or her invalid parents, because they are working in different cities or because one spouse is working abroad.  Whilst they may actually be living separately, this physical separation is not sufficient until at least one of you decides that the marriage is at an end.

A decision to end the marriage can be inferred from conduct, for example, where the party living away ceases to communicate or telephone the other party or return home and sets up home with someone else.

Will No-Fault Divorce make a difference?

Whilst No-Fault divorce has reformed the way in which a Divorce is started and therefore living together for the purposes of starting divorce proceedings is not going to be important, it will remain an important factor when looking at establishing non-matrimonial assets, the length of the marriage and potential tax consequences.

To find out more about No-Fault divorce and when the law is due to be changed read our article entitled 'no-fault-divorce - when is it happening?'

How Neves can help

At Neves, our team of Family Law experts can advise you on all circumstances surrounding your separation and if you would like advice and support regarding divorce and finances, contact our Family Law team today on 0330 0945 500 email family@nevesllp.co.uk or complete our contact form and we will get back to you.