Woman’s appeal against ‘undefended’ divorce competent but refused

A woman who was seeking to challenge a sheriff’s decision to grant her husband a decree of divorce after she lodged a late motion to defend the action has had her appeal dismissed.

 

The woman claimed that was entitled to financial provision on divorce which she had now lost as a result of the granting of the decree, but her ex-husband argued that the appeal was incompetent.

 

The Sheriff Appeal Court ruled that the appeal was competent, but upheld the sheriff’s decision.

 

 

Appeal Sheriff William Holligan heard that the respondent “PS” raised an action seeking decree of divorce at Edinburgh Sheriff Court in December 2017 and that, at the time the action was raised there were, and continue to be, separate section 11 proceedings involving the children of the marriage.

 

As a matter of courtesy, the respondent’s agents sent to the agents then acting for the appellant “NS” in the section 11 proceedings a copy of the writ, which had been served on the appellant on 28 December 2017, with the notice period due to expire on 18 January 2018.

 

The appellant had consulted different solicitors from those involved in the section 11 proceedings in relation to the divorce action, but did so after the notice period had expired. 

 

Her solicitors immediately intimated a motion to allow a late notice of intention to defend to be received, which was sent to the court and to the respondent’s agents, and the motion was not marked as opposed. 

 

But in the intervening period, the respondent’s agents enrolled a motion for decree of divorce and decree was granted.

 

 

The appellant marked an appeal against the decree, but the respondent has challenged the competency of the appeal.

 

The argument for the respondent as to the competency of the appeal was that what the appellant was seeking to do in the appeal was to be reponed.

 

There was “nothing intrinsically wrong” with the decision of the sheriff and it was not suggested that the sheriff erred in granting the decree. 

 

The sheriff did not take into account irrelevant considerations or act beyond her powers and there was nothing which would suggest a legal basis upon which the appellate court could interfere with the grant of the decree. 

 

Reference was made to Mahmood v Mahmood 2007 SLT (Sh Ct) 176 and Taylor v Taylor (unreported, 24 September 2007) to support the respondent’s position.

 

Further, in relation to rule 33.33A, which deals specifically with the late appearance and application for recall of decrees of divorce, no such application pursuant to that rule had been made.

 

 

On behalf of the appellant it was submitted that in terms of section 110 of the Courts Reform (Scotland) Act 2014 the appeal was “competent” as the interlocutor of the sheriff was a “final judgment”.

 

It was accepted that, in pursuing the appeal, the provisions of rule 33.33A had been overlooked by the appellant’s agent, but that did not present an obstacle to the pursuit of the appeal. 

 

It was also argued that there was an “error of law” in the granting of the decree, since there was an outstanding motion before the sheriff for the late lodging of a notice of intention to defend. 

 

The sheriff was not made aware of the existence of the motion, but had she been aware she would have had to consider it.

 

It was submitted that the appellant had a choice: she could either proceed pursuant to rule 33.33A or proceed by way of appeal.

 

 

Refusing the appeal, the court observed that an appeal against a decree of divorce was a competent, but that there was no error in the sheriff’s decision in this case.

 

Delivering the opinion of the court, Appeal Sheriff Holligan said: “[I]n dealing with the first argument for the appellant, in my opinion, in a narrow sense, an appeal against the decree of divorce is competent. It is a final decree. The terms of section 110 of the 2014 Act are clear. Furthermore, rule 33.33A(6) makes clear that the terms of the rule do not affect any right of appeal the defender might otherwise have.

 

“I do not however agree with the submission that the decision of the sheriff amounts to an error. The argument is that because a motion had been enrolled for the late lodging of a notice of intention to defend that somehow rendered the decision of the sheriff erroneous. It seems to me that the sheriff was not only entitled to grant the decree which she did upon the basis of the information placed before her but was bound so to act. There is nothing erroneous about the decision. 

 

“In relation to the third issue, in my opinion it is open to a defender against whom a decree of divorce has been pronounced in an undefended action to utilise either section 110 of the 2014 Act or rule 33.33A. Although both avenues provide relief to a defender, the basis for granting relief is different. 

 

“In the case of the former, the jurisdiction of the appellate court is exercised upon conventional appeal grounds; in the case of the latter, the sheriff exercises the jurisdiction upon reponing grounds (see rule 33.33A(5)). In my opinion the two do not overlap. The two avenues may provide a similar outcome but the basis for the exercise of the jurisdiction is different.

 

“The appellant advances her case by way of appeal. If I am correct in my conclusion, there seems to be no basis upon which an appellate court could allow the appeal on conventional appeal grounds. The only basis for doing so is the motion for the late lodging of the notice of intention to defend. For reasons I have given, I do not consider that to amount to an error which would entitle an appellate court to interfere. There is therefore no basis for this appeal to proceed.” 

 

“However,” he added, “I do add this. Unlike the situation in Mahmood, the appellant does have a remedy and that remedy is to enrol a motion to allow the court to deal with an application pursuant to rule 33.33A although late….Given the material before me, I find it difficult to see that such an application could be refused. The consequence is that I shall refuse the appeal.”