1) Introduction
In [2026] CSOH 69 (Outer House, Court of Session), Lord Braid refused an action
seeking reduction (quashing) of an undefended sheriff court decree of divorce granted at Edinburgh on
11 March 2024. The pursuer did not seek to remain married, nor sought child-related orders, but
argued that the divorce had been obtained on an inaccurate factual basis and that reduction was necessary so
that issues of financial provision could be litigated.
The proof focused on: (i) whether the original decree should have been granted (including separation, child-care
information, and a potential financial claim); (ii) why the pursuer did not defend the divorce; and (iii) whether,
in the whole circumstances, justice required reduction.
3) Analysis
3.1 Precedents cited
Jandoo v Jandoo [2018] SLT 531
The parties placed weight on Lord Woolman’s formulation (not lightly setting aside a decree; “no precise test”;
and a set of factors said to require to be shown). Lord Braid treated those propositions as context-sensitive and
cautioned against converting them into rigid requirements applicable in all reduction cases. Importantly, he
expressed concern that insisting the pursuer “must show that the decree ought not to have been granted on the
merits” may be too stringent in divorce contexts, because a decree can be properly granted yet still arguably
operate unfairly if it deprived a party of a realistic opportunity to pursue financial provision.
Robertson's Executor v Robertson [1995] SC 23
This was treated as anchoring the governing approach: a whole-circumstances assessment. Lord Braid
emphasised that, while factors such as the merits of the original decree and the explanation for non-appearance
are usually important, they are ultimately evaluated within the broader question of whether reduction is justified
in all the circumstances. He also reaffirmed (consistent with the parties’ agreement) that “exceptional
circumstances” are not a prerequisite.
Hafthorsdotir v Eyvindsson [2025] CSOH 6, 2025 Fam LR 23
The pursuer relied on this as illustrating “opportunistic” minuting for decree where outstanding financial matters
were known. Lord Braid distinguished it: in that case, there were clear ongoing financial issues and an expectation
the divorce would be defended. Here, by contrast, there was no demonstrated asset base or realistic financial claim,
and no comparable ongoing process that would make proceeding to decree unfair.
3.2 Legal reasoning
(a) The structure of the “test”: rejecting undue rigidity
Lord Braid accepted the practical usefulness of considering (i) whether decree ought to have been granted; (ii) the
reason for not defending; and (iii) the whole circumstances. But he clarified that the overarching inquiry
is whether the whole circumstances justify reduction. The other considerations are typically components of that
evaluation, not free-standing hurdles mechanically applied.
(b) Separation and merits of divorce
Two dates had featured: one in a draft agreement (10 April 2021) and a later date pled in the writ/affidavits
(4 October 2021). The defender’s position—no longer living together as spouses from April 2021 but physically
leaving the home in October 2021—was accepted as justifying the later date. The pursuer’s account (continued visits
and marital relations) was viewed as imprecise and inconsistent with her earlier positions. The court found the
sheriff court had an adequate factual basis to conclude the two-year separation ground was met.
(c) Child welfare information and section 12 of the Children (Scotland) Act 1995
Lord Braid acknowledged the seriousness of false information where a court must consider child welfare under
section 12 even if no child orders are sought. Accurate and current information matters, and a court
may request further detail. However, on the facts, the affidavits were not shown to be materially untrue; any lack
of detail did not mislead the sheriff into granting divorce. Crucially, the alleged care dispute did not translate
into any identified order the pursuer would have sought, nor did it plausibly affect the grant of divorce.
(d) The utility of reduction: a non-speculative financial provision claim
This was decisive. The pursuer alleged undisclosed assets (including abroad), multiple accounts, business interests,
and high-value vehicles. Yet the evidence did not support even a colourable claim: company accounts indicated
net liabilities; the alleged lifestyle indicators were weak; and the pursuer had already received a substantial cash
sum at separation (at least £7,000 on her own account). The court held there was “no prospect on current information”
of further award.
Lord Braid also treated procedural conduct as relevant to justice: the pursuer delayed in seeking recovery of
financial documents; a late attempt to discharge the proof for a commission was refused; and reduction was not to be
used to obtain more time for what was, in substance, an exploratory exercise.
(e) Explanation for non-defence and alleged “opportunism”
The court accepted that language barriers, illness, stress, and difficulty securing representation provided some
reasonable explanation for not lodging a notice of intention to defend. But Lord Braid rejected the proposition that
the defender’s solicitor acted improperly by minuting for decree after the pursuer requested an extension: court
timetables were fixed by rules, there was no duty to disclose the refused extension request to the sheriff, and a
solicitor is ordinarily professionally obliged to progress the client’s case. Any earlier misstatement about a
business debt did not explain the failure to defend.
3.3 Impact
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Reaffirmation and refinement of the whole-circumstances approach: the decision underscores that
“whole circumstances” is the controlling inquiry, and cautions against treating factor-lists from earlier cases as
rigid preconditions.
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Reduction is not a mechanism for speculative financial fishing: where the practical purpose of
reduction is to pursue financial provision, the pursuer should be able to point to a credible asset base or other
concrete foundation; delay in diligencing recovery can count strongly against reduction.
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Child welfare affidavits: the court signals that misleading child-related information could
matter, but reduction will not follow merely because the narrative about care arrangements is disputed, absent
materiality to the decree or demonstrated prejudice.
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Professional conduct points: the judgment pushes back against an expectation that a pursuer’s
solicitor must refrain from minuting for decree simply because an unrepresented defender asks for time—especially
where there is no identified substantive prejudice or live financial process akin to Hafthorsdotir v Eyvindsson.