In Ligere v Ajid [2026] CSOH 69, Lord Braid confirmed that there is no strict checklist or formula for determining whether a decree of divorce should be reduced (set aside).
Instead, the court's focus is on a broader question: does justice, taking account of all the circumstances, require the decree to be set aside?
Although parties had agreed that the applicant must evidence:
- that the decree ought not to have been granted on the merits;
- that there is a reasonable explanation for failing to take part in the original proceedings; and
- that the overall circumstances justify reduction.
Lord Braid's view, in so far as (1) and (2) are concerned, was that this was too stringent a test on the pursuer. He preferred a standalone "whole circumstances test". In other words, "if the circumstances as a whole justify reduction, then reduction should surely follow".
What Factors Will the Court Consider?
Lord Braid said the factors which are likely to be relevant when deciding whether the whole circumstances justify a reduction include:
- whether the original decree was granted on false, incomplete or otherwise challengeable evidence;
- the reasons why the party seeking reduction did not defend the original action;
- whether there is a realistic claim, such as a claim for financial provision, that would be lost if the decree remains in place; and
- whether reducing the decree would achieve any practical benefit.
Why Was the Application Unsuccessful?
In Ligere v Ajid, the applicant ran a three-pronged argument:
- the original decree ought not to have been granted on the merits because the parties were not separated for at least 2 years by the time the divorce action was raised. Although the applicant challenged the date relied upon by her husband, she did not seek to specifically rely on any other date. The court found the parties had been separated for more than 2 years before the divorce action was raised and so this element of her case fell.
- the original decree ought not to have been granted because the evidence in the divorce action in respect of the care arrangement for the parties' child was incorrect. The court rejected the applicant's evidence and so this element of her case fell too.
- she had a realistic claim for financial provision. The applicant argued that her husband had not fully disclosed his finances. Lord Braid commented that her argument in this regard was "lacking in specification" (vague). It was observed that it had been open to her to recover information about her husband's finances through a court process known as "specification of documents". She unreasonably (as found by the court) delayed doing so. On the evidence available, Lord Braid concluded that there was no basis to find that she had even a "colourable claim for financial provision, let alone that such a claim would have been likely to succeed such that the divorce ought not to have been granted".
The court also considered whether the applicant had a reasonable explanation for not defending the original divorce action. The applicant argued that it was due to language difficulties, ill health and challenges in obtaining legal representation. Whilst it was accepted that these factors provided some explanation for her absence from the proceedings, they were not enough on their own.
The court found that the divorce had been properly granted on the evidence available at the time. There was no material misrepresentation, and the pursuer had not demonstrated a credible claim for financial provision. As a result, there was no meaningful purpose in setting the decree aside.
The Key Takeaway
The decision serves as a reminder that the court will not reopen a divorce simply because one party later regrets the outcome or wishes to revisit financial issues. A person seeking to reduce a decree must be able to show that there is a genuine issue worth reconsidering and that the interests of justice favour reopening the case.
For individuals who believe a divorce has been granted without their proper involvement, obtaining legal advice as early as possible is crucial.
