For married couples, Valentine’s Day is advertised as a happy occasion where they can show their love for one another and appreciate the time they have spent together. For those recently separated, it can be a difficult time. As social media fills with posts from those still happily besotted it can make you wonder – what would happen if we got back together?
In order to be divorced, you have to be able to say to the court that there is no prospect of reconciliation. This means that your relationship has to have broken down to the point of being irretrievable and, as Taylor Swift would say, you are never, ever, ever getting back together.
Reconciliation does happen for many couples,
even if just for brief periods.
However once the dust settles from the initial separation, reconciliation does happen for many couples, even if just for brief periods. For some, divorce proceeding can even be raised more than once before the couple finally splits for good. Considering the possibility of getting back together causes a whirlwind of not just emotions, but of legal issues to consider too.
So what constitutes a ‘reconciliation’ as far as the law is concerned? The legislation governing this area of law is the Family Law (Scotland) Act 1985 (the “1985 Act”) Section 27(2) of the act states that you have to have resumed cohabiting and are “living together as man and wife”. This is an objective test, so the court would look into your relationship to determine whether you were back together or not. A few dates won’t suffice. If you resume cohabitation within the first 90 days of your separation, then your original date of separation will no longer count.
So what then happens if you are deemed to be reconciled and you then decide to split up again? Section 10(7) of the 1985 Act provides help to some degree. There are 4 potential scenarios:
1) You have been separated for 90 days or more and get back together for less than 90 days
2) You have been separated for less than 90 days and get back together for more than 90 days
3) You have been separated for 90 days or more and get back together for more than 90 days
4) You have been separated for less than 90 days and get back together for less than 90 days.
It is only in scenario 1 that your original date of separation is preserved. In the other scenarios your date of separation will be the most recent one.
Depending on your specific circumstances, a period of reconciliation could dramatically change the landscape for financial provision on divorce.
So why does any of this matter? Depending on your specific circumstances, a period of reconciliation could dramatically change the landscape for financial provision on divorce.
If you and your ex-partner had already gone through the legal process before your reconciliation and had signed a separation agreement, the reconciliation could well make your previous separation agreement ineffective.
In some cases though, the reconciliation does last. The tabloids recently have been full of stories relating to Kourtney Kardashian and Scott Disick reportedly returning to married life after a long split. How would such a couple ensure some sense of stability going forward? In these circumstances a post-nuptial agreement (an agreement about arrangements for a future separation should the reconciliation fail) can serve as a tool for these couples to agree financial matters in the event of a future separation.
If you are considering getting back together with an ex-partner, your lawyer may be the last person you think of telling. However, early advice at this juncture can help you to be well prepared if the reconciliation doesn’t work out in the end.