KNOWLEDGE

To Cohabit or not to Cohabit?

Morton Fraser Senior Solicitor Ellen Crofts
Author
Ellen Bond
Associate
PUBLISHED:
16 May 2022
Audience:
Individuals and Families
source:
The Journal
category:
Blog

We don’t often see reported cases around relevant date disputes and particularly not ones where they have gone to appeal, but in McLeish v McLeish 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 to each of these dates.

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 a list of 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 

The sheriff at first instance, 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 whilst 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. It was advanced by the husband that an essential requirement of "in fact living together” that the place (or places) where the parties are said to be living together are fully accessible to both parties. 

The wife also lodged a cross appeal on the basis that on the evidence before the sheriff there was no material 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 must be looked at objectively. There is no requirement for either party to communicate to one another that the relationship is over, and the ultimate determination of the issue must depend upon the particular circumstances of a given case. The judgment 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 Sheriff Appeal Court (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 they will interfere with the findings in fact made by the sheriff at first instance on the basis that he has gone plainly wrong only if it is satisfied that his decision cannot 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 the decision of the sheriff.

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 the SAC 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 the contrasting 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.

Disclaimer

The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers.  Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.