Outer House refuses to quash undefended divorce decree despite suggestions of factual inaccuracies

About this case:

• Citation:
  [2026] CSOH 69
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

The parties’ divorce was granted on the defender’s motion in an undefended action at Edinburgh Sheriff Court in 2024. After the pursuer sought to challenge the factual basis on which the decree was granted, an action for reduction came before the Outer House of the Court of Session.

The action was heard by Lord Braid, with Jonathan Deans appearing for the pursuer and Julian Aitken for the defender.

Too late to defend divorce action

The parties married in 2013 and had one child, M, aged 11 at the time of proof. In April 2022, the defender’s solicitor sent a letter by email to the pursuer noting the breakdown of the parties’ marriage and making various proposals in relation to financial provision and shared care arrangements. The pursuer did not respond.

A draft minute of agreement was subsequently sent to the pursuer in June 2023. Among other things, it proposed a date of separation of 10 April 2021 and noted that each party was satisfied that the other had made full disclosure of the state of their respective finances. The pursuer challenged several aspects of the agreement, rejecting in particular the proposition that the defender had disclosed his finances in full, but did not challenge the stated date. In response, the defender’s solicitor returned an amended draft to the pursuer, which again went unacknowledged.

An initial writ seeking decree of divorce was presented to Edinburgh Sheriff Court in November 2023. Days before the pursuer’s deadline to lodge notice of intention to defend, she emailed the defender’s solicitor to request an extension on account of her difficulties in finding legal aid representation. Although the defender’s solicitor noted that she could not alter the dates set by the court, she deliberately waited until February 2024 before minuting for decree in order to give the pursuer time to obtain representation.

The court issued decree of divorce in March 2024. Some 11 months later, the pursuer brought an action seeking reduction of the decree. She argued that it had been obtained on a factual basis which was inaccurate and likely prejudicial to her position in respect of financial provision. In support of that position, she advanced sundry submissions.

Although she could not identify a specific date of separation, the late-2021 date on which the court had proceeded was incorrect. The pursuer’s apparent accession to the minute of agreement’s designation of the relevant date as 10 April 2021 could be ascribed to the defender “probably ma[king her] misunderstand”. Affidavits lodged by the defender attesting to a shared care arrangement were likewise inaccurate. The defender had undisclosed assets in Pakistan and, even at home, had failed to disclose several bank accounts and his ownership of multiple luxury cars. The pursuer’s poor understanding of English, health difficulties and inability to find legal representation until after it was too late to defend the divorce action all amounted to a reasonable explanation for her failure to enter the proceedings.

Not in the interests of justice to relitigate divorce

Assessing the pursuer’s arguments in turn, Lord Braid began by considering submissions in respect of the date of separation: “The question is not whether, and to what extent, the parties were physically under the same roof but whether, if they were, they were living together as husband and wife, which is often a more nuanced question. On the evidence before me, the date of separation could have been taken as 10 April 2021, but [the defender’s solicitor’s] more cautious approach of selecting 4 October 2021, the date when [the defender] physically moved out of the house, cannot be faulted. There is no basis for holding that the evidence presented to the sheriff court as regards the date of separation was incorrect … [W]ere the decree to be recalled and the divorce relitigated, there is no reason to suppose that the court would alight upon a different date of separation.”

Turning to consider the matter of care arrangements, he continued: “[I]t is always a question of fact and degree as to how much detail need be given to the court about the welfare of a child, and practice can vary. Sometimes, the affidavits contain a considerable amount of detail; sometimes, as here, they do not. If the sheriff considers that insufficient detail has been given, it is open to him or her to request further information. That did not occur in the present case. Turning to consider the affidavits lodged in support of the minute for decree in this case, and comparing them with the evidence led before me, it cannot be said that they misled the sheriff into granting decree when he would not otherwise have done so.”

On the question of the defender’s assets, Lord Braid continued: “It was put to [the defender] in cross-examination that his declared income was inconsistent with his offer to pay aliment at the rate of £1,500 per month. While I confess that I found [his] evidence on this difficult to follow and not entirely satisfactory, equally there is no basis for finding that he has assets salted away which he has not disclosed to [the pursuer]. He does not appear to lead a particular lavish lifestyle. There is no basis for supposing that if the decree were recalled, and the divorce action revived, assets would suddenly appear out of the ether, as it were.”

Although agreeing that the pursuer’s “labouring under a mix of difficulties” gave rise to a reasonable excuse for not having defended the divorce action, Lord Braid’s conclusion remained that the whole circumstances of the case did not justify reduction: “The only purpose of reducing the decree would be to afford [the pursuer] more time to seek to recover documents from [the defender], but that would be an entirely speculative exercise. Looking at the matter more widely, more than 3 years have elapsed since [the pursuer] first requested full disclosure. Whatever difficulties she may have had, she has had ample opportunity since then to seek legal advice with a view to taking such steps as were considered appropriate to compel [the defender] to make full disclosure. She has not done so, and it is inappropriate, and not in the interests of justice, to afford her still more time to do so.”

The action was accordingly dismissed.