An undefended decree of divorce, a recall application lodged four weeks late, and a defender who probably had a substantial financial claim. The application failed on time-bar alone.
Background
The pursuer raised an action of divorce which proceeded as undefended. Decree was pronounced on 26 March 2026 and extract issued on 10 April 2026. No notice of intention to defend had been lodged.
The defender applied under rule 33.33A of the Ordinary Cause Rules to recall the decree. Her application was lodged on 23 April 2026, outwith the fourteen-day time limit prescribed by rule 33.33A(3). She asked the court to excuse the delay using the general dispensing power in rule 2.1(1) of the Ordinary Cause Rules.
The issues
Two questions arose. First, whether the dispensing power in rule 2.1(1) could competently be exercised to allow a late application for recall under rule 33.33A after extract had been issued. Second, if it could, whether it should be in this case.
The defender argued that the prejudice to the pursuer from recall amounted to little more than delay and inconvenience, whereas the prejudice to her was substantial: applying the principles in section 9 of the Family Law (Scotland) Act 1985 to the matrimonial assets and liabilities at the date of separation and to the parties’ respective resources, she was likely to be entitled to a significant capital sum and to an agreement about her continued occupation of the former matrimonial home. The pursuer’s position was simply that the application was time-barred and incompetent, the decree having been validly obtained on a properly served action and affidavit evidence.
The decision
Sheriff Gosney held that the application was time-barred and therefore not competent, and refused it.
The postscript to the judgment is the part worth reading twice. The sheriff recorded that he was satisfied that, on the face of it, the application did set out a proposed defence, and that an explanation had been provided for the failure to lodge a notice of intention to defend in time. Because the application was time-barred, he did not need to determine those matters any further. In other words, the defender may well have had both a defence and a reason for being late, and it made no difference.
What it means in practice
Read alongside Ligere v Ajid [2026] CSOH 69, decided in the Court of Session two months later, this makes the same point by a different route. Once decree of divorce passes in an undefended action, the financial claims that go with the marriage are lost, and the courts are markedly reluctant to reopen matters, whether by recall in the sheriff court or by reduction in the Court of Session.
The practical lesson is about timing rather than merits. Fourteen days is a very short period, it runs from the date of decree, and a strong underlying financial claim will not rescue an application lodged outside it. Anyone served with a divorce summons who believes there is matrimonial property to divide should take advice at once. Our page on financial provision on divorce explains what is at stake.