Banks v. Smith or Banks [2005] ScotCS CSOH_144 (08 November 2005)

Banks v. Smith or Banks [2005] ScotCS CSOH_144 (08 November 2005)

The parties ceased to cohabit as husband and wife in July 2001, when the pursuer stopped staying overnight at the matrimonial home and the relationship changed such that they were no longer living together in any meaningful sense as husband and wife. Prior to that, despite a cold and distant relationship, the pursuer continued to return to the home, maintain financial and domestic ties, and there was insufficient change to constitute cessation of cohabitation.

Citation
[2005] ScotCS CSOH_144
Parties
Pursuer: John Owen Banks; Defender: Kathleen Ross Smith or Banks
Jurisdiction
Scotland
Judgment Date
08 November 2005
Procedural Posture
Divorce Action / Preliminary Proof to Determine Relevant Date of Cessation of Cohabitation
Outcome
Relevant date for cessation of cohabitation determined as July 2001.
Legal Topics
Divorce, Cohabitation, Financial Provision on Divorce, Relevant Date Determination
Family Law Divorce Cohabitation Financial Provision on Divorce Relevant Date Determination

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Parties

John Owen Banks

Pursuer

Kathleen Ross Smith or Banks

Defender

Procedural Posture

Divorce Action / Preliminary Proof to Determine Relevant Date of Cessation of Cohabitation

Legal Issues

  1. 1 When did the parties cease to cohabit as husband and wife for the purposes of section 10(3)(a) of the Family Law (Scotland) Act 1985?

Ratio Decidendi

The parties ceased to cohabit as husband and wife in July 2001, when the pursuer stopped staying overnight at the matrimonial home and the relationship changed such that they were no longer living together in any meaningful sense as husband and wife. Prior to that, despite a cold and distant relationship, the pursuer continued to return to the home, maintain financial and domestic ties, and there was insufficient change to constitute cessation of cohabitation.

Court Disposition

Relevant date for cessation of cohabitation determined as July 2001.

Orders

  • Preliminary proof concluded; parties to proceed on basis that relevant date is July 2001 for purposes of financial provision.