H.S. AGAINST F.S.

[1] On 6 to 8 May 2014, the Lord Ordinary heard a preliminary proof on the correct “relevant date” for the purposes of fixing and valuing the parties’ matrimonial property. That date is “whichever is the earlier of…the date on which the persons ceased to cohabit [and] the date of service of the summons …” (Family Law (Scotland) Act 1985, s 10(3)). “… [T]he parties to a marriage shall be held to cohabit with one another only when they are in fact living together as man and wife” (s 27(2)).

[3] The Lord Ordinary determined the date to be 19 June 2013 (the receipt date of the letter). The pursuer reclaimed on the basis that the Lord Ordinary had erred in so doing, and “in particular…[e]rred in law” in various respects in his treatment of the evidence. Ultimately, the pursuer’s overarching ground of appeal was that:

“… the Lord Ordinary having failed to consider all the relevant evidence, misunderstood or failed to have full and proper regard to the relevant evidence he arrived at a decision that cannot reasonably be justified. No reasonable Lord Ordinary, having proper regard to all of the relevant evidence in the case would have fixed the relevant date at 19 th June, but would have fixed it at 13 th May 2013 or thereby.”

The appeal therefore raises the issue of whether the Lord Ordinary did so err in his determination of a matter of fact.

[5] Notwithstanding the tension between the parties, their domestic arrangements continued relatively unchanged. The pursuer did the cooking, cleaning, laundry and all the household tasks as she had always done. The parties ate their meals together. They watched television together. The financial management of household bills remained the same. The pursuer saw the defender off at the door when he went to work. The defender had continued to profess his love and affection for the pursuer, even if that was not reciprocated.