Outer House judge rules decree of divorce in absence from 2021 could be reduced due to outstanding matters

About this case:

• Citation:
  [2025] CSOH 6
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Cubie

Linda Hafthorsdotir sought to reduce her divorce from Bjarni Eyvindsson, after not having entered the divorce proceedings, in order to resolve financial loose ends that arose as a result of their separation. The defender, who had since remarried, opposed the action, arguing that all financial matters had been resolved.

The case was heard by Lord Cubie, with Deans, advocate, appearing for the pursuer and Sanders, advocate, for the defender.

Reasonable explanation

The parties were married in Reykjavík in 1998 and separated on 18 September 2018. They were divorced at Dunfermline Sheriff Court by way of decree in absence on 16 November 2021. A joint minute disclosed inter alia that at the date of separation the wife had a pension with a cash equivalent transfer value of £4,822.72; she had debts of £87,464.50 relating to her Icelandic student loan, and £8,976.03 relating to a personal loan with the Royal Bank of Scotland. The husband had a pension with a CETV of £177,079.20.

Evidence from the wife’s solicitor Mr Simpson indicated that he had instructions to enter appearance in the divorce on her behalf and had dictated a letter sending a notice of intention to defend. However, while he sent the NID to the sheriff clerk, he did not intimate it to the husband’s solicitor despite being required to do so by the Ordinary Cause Rules. By the time they realised that decree in absence had been granted, it was too late to appeal.

The husband’s evidence was that he believed his wife was no longer seeking financial provisions, with his solicitor Mr Bennet saying that he took from the lack of formal response that the action was not defended. Mr Bennet did not contact Mr Simpson to find out where the NID was.

Counsel for the pursuer submitted that she had established that decree should not have been granted, there being a reasonable explanation for why she did not enter proceedings. Whatever the explanation for the procedural mishap that prevented the NID being lodged, the wife was not herself responsible for that. Although the husband had married again, that was done in the full knowledge of the challenge being made to the decree and cannot be regarded as decisive.

For the husband and defender, it was submitted that the failure of the pursuer’s solicitor to defend the action for divorce potentially gave rise to a claim of negligence, which when allied with the husband’s remarriage tipped the scales in favour of absolvitor. He recognised that there were no pleadings or evidence about whether Mr Simpson had acted in the way that no reasonably competent solicitor of ordinary skill and care would have acted, but from the evidence the court could reach a view about that being a potential remedy.

Intelligible, if not impressive

In his decision, Lord Cubie began by assessing the evidence: “Mr Simpson considered that it was perfectly clear to the husband and his solicitor that the divorce was to be defended. He had written to the husband’s solicitor in detail on 4 November 2021 to confirm that legal aid had been granted to the wife and suggesting a way forward. He had not anticipated that any steps would be taken to minute for decree given the outstanding matters. His approach was intelligible, if not professionally impressive.”

He continued: “The husband was determined to criticise Mr Simpson, although none of the criticisms were put to Mr Simpson directly in cross-examination. The husband blamed Mr Simpson for failing to progress financial discussions, from which it can be inferred that the husband knew that there were outstanding financial matters. His purported belief that matters were ‘resolved’ was unconvincing.”

Applying the law to these facts, Lord Cubie said: “From the material before me there seems to have been an imbalance, perhaps even a gross imbalance, in the division of the matrimonial property in terms of the matrimonial assets and liabilities. The decree should not have been granted on the merits given the obvious outstanding financial matters to be resolved of which the husband was aware. The wife’s claim has not appeared out of the ether but was the subject of correspondence for months without much apparent progress being made in relation to determining the nature, extent and value of the matrimonial property.”

He added: “There was insufficient focus in the pleadings, far less the evidence, for me to be able to reach even a preliminary conclusion about whether a case sound in negligence could be brought by the wife against Mr Simpson. At best, the facts might justify the instruction of an expert report to obtain an opinion as to whether Mr Simpson had acted negligently. That plainly distinguishes this case from the type of negligence which was described as quite clear or straightforward.”

Finally, addressing the husband’s remarriage, Lord Cubie concluded: “This action of reduction was raised in early 2022. The husband remarried on 10 December 2023. The husband went into the marriage with his eyes open. He cannot complain that this challenge has materialised out of nowhere particularly given the information about the respective financial positions of the party; steps were taken immediately by the wife, on learning that decree had been granted, to address matters.”

Having indicated that he was satisfied that the pursuer had the right to have the decree reduced, Lord Cubie fixed a By Order hearing for parties to consider the best way of resolving the issues between them.