Outer House resolves separation date issue where divorcing parties argued for dates three years apart

About this case:

• Citation:
  [2024] CSOH 98
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Stuart

Pursuer CD contended that the relevant date on which he and defender ND ceased being a couple was 30 December 2017 after he discovered she had intimate relations with other men. The defender argued that the relevant date was 6 January 2020, and attempts were made to maintain the relationship until that point.

The case was heard by Lord Stuart in the Outer House of the Court of Session, with Donachie, advocate, appearing for the pursuer and Clark, advocate, for the defender.

Fatal to marriage

The parties married in August 1998 and by the date of the proof had three adult children, referred to by the names Simon, Andrea, and James, and one child, John, under the age of 16. The family moved to Australia in August 2013, a move facilitated by the pursuer’s employer, but in August 2016 the pursuer returned to Scotland, again connected to his employment, taking his eldest child Simon with him, however the defender stayed in Australia with the remaining children.

In his evidence, the pursuer stated that he became aware in September 2017 that the defender “was involved with” another man, and that between 25 and 30 December 2017 Simon and Andrea told him that the defender had a dating app on her phone. He confronted the defender about this and accessed graphic messages on her phone that he considered were fatal to their marriage. He argued that, at this time, the defender knew that their marriage was over, and they did not share a bed after that date.

The defender lodged two affidavits, in which she stated that the parties did not discuss separating after 30 December 2017 and noted that the family holidayed together in Florida in July 2018 and the pursuer had proposed the family move to Boston together. The pursuer left his employment in November 2019, which was reported in the press as being done to allow him to move closer to his family. To her, the date they separated was 6 January 2020, when she and three of the children got on a cruise ship without the pursuer and Simon.

Counsel for the pursuer submitted that there was no reconciliation after December 2017, and any interaction between the parties after that time was transactional and mainly in connection with the children. For the defender it was submitted that the pursuer had made gestures of love and affection since December 2017 and suggested that his proposal of the earlier date was done to avoid a significant payment for his shares in his previous employer being considered part of the matrimonial property.

Element of bitterness

In his decision, Lord Stuart said of the credibility of the pursuer: “On several occasions he asserted propositions in his affidavit and oral evidence regarding the status of the parties’ relationship that seemed to me to be at odds with an objective assessment of the relevant evidence and only once matters were put to him in cross-examination did he accept that the objective assessment was correct, for example various messages he sent to the defender, the sending of flowers to the defender at her place of work and the Valentine’s card/message he sent her, all of which, when pressed, he conceded were, or could legitimately be received by the defender, as signs of love and affection.”

He continued: “The concern I am left with is that the pursuer has mistakenly or unthoughtfully given evidence that, at best, is inconsistent with an objective assessment of independent evidence, raising questions about the reliability of the pursuer’s evidence, or, at worst, has deliberately given such evidence, thereby raising concerns about the credibility of the pursuer’s evidence.”

Assessing the reliable evidence before him, Lord Stuart said: “I accept the defender’s evidence that she thought the parties’ relationship was better during 2018. I say that under reference to all of the evidence discussed above for that period. I have also concluded that in 2019, and more particularly later in 2019, there are signs of cracks in the parties’ relationship. The nature and tone of the messages between them has changed from 2018. Significant decisions do appear to be being made in the absence of consultation with the other. The pursuer acknowledges in his evidence that he has begun to see other women, although these appear casual rather than forming a new relationship.”

He concluded: “The communications regarding the cruise in January 2020 has an element of bitterness to it. But, in my judgment, when the defender and younger children get on the cruise ship without the pursuer and Simon and the pursuer and Simon return to Scotland for the last time, the parties appear to me to have consciously let go of their relationship and, at that point, objectively, they separate and are no longer cohabiting as man and wife.”

The relevant date was accordingly held to be 6 January 2020.