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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Adair v. Adair [1924] ScotLR 553 (21 June 1924) URL: http://www.bailii.org/scot/cases/ScotCS/1924/61SLR0553.html Cite as: [1924] ScotLR 553, [1924] SLR 553 |
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Page: 553↓
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The Married Women's Property (scotland) Act 1920 Provides—Section 4—“In the event of a husband being unable to maintain himself, his wife, if she shall have a separate estate or have a separate income more than reasonably sufficient for her own maintenance, shall be bound out of such separate estate to provide her husband with such maintenance as he would in similar circumstances be bound to provide for her, or out of such income to contribute such sum or sums towards such maintenance as her husband would in similar circumstances be bound to contribute towards her maintenance.”
In an action of separation by a wife against her husband the latter moved for an award of interim aliment in respect of his own indigence and of his wife's possession of a separate income. Held that the application was competent, and that the averments disclosed prima facie ground for an award.
Mrs Jessie Forbes Simpson or Adair, 5 Abercorn Avenue, Edinburgh, brought an action of separation against James Adair her husband. The defender was admitted to the poor's roll.
On 11th June 1924 the Lord Ordinary (Ashmore) refused the defender's motion for an interim award of expenses but decerned against the pursuer for payment to the defender of 10s. weekly in name of interim aliment.
Opinion.—“This is an action of separation at the instance of a wife against her husband on the ground of his cruelty to her.
Defences have been lodged stating various pleas and grounds of defence and, inter alia, denying cruelty.
Yesterday at the diet for adjusting the record, the record was closed and the case was sent to the procedure roll. At the same time counsel for the defender (the husband) moved for interim awards of expenses and aliment. Both awards were opposed.
As regards expenses the defender is on the poor's roll, and I am of opinion that at this stage no award of expenses ought to be made in favour of the defender.
As regards interim aliment I think that there is prima facie ground for an award.
The pursuer avers that the defender is at present unemployed, and the averment is admitted by the defender. Then the defender avers that the pursuer has an income in the shape of a liferent of £500 a year. According to the pursuer, however, her income is only about £300 per annum, and the pursuer supports or helps to support her daughter, and she states that she is neither able nor willing to contribute to the support of the defender.
By section 4 of the Married Women's Property (Scotland) Act 1920 (10 and 11 Geo. V, cap. 64) a married woman is made liable to contribute to the maintenance of her husband if he be unable to maintain himself and if she have a separate estate or separate income more than reasonably sufficient for her own maintenance.
If the husband were the pursuer and the wife the defender in the circumstances above stated I think that an interim award of aliment would be made to the wife, and that being so I think that an interim award ought to be made in favour of the defender in this case.
There is room for doubt and difficulty as to the amount, but as counsel for the parties were unwilling to try to adjust the figure, I have come to the conclusion that in hoc statu the award should be 10s. a week, that being the allowance which, according to the defender, the pursuer made to him for a short period in 1923.”
The pursuer reclaimed against the award, and argued—The Married Women's Property Act 1920 did not apply to an award of interim aliment. Even if it did, the Lord
Page: 554↓
Ordinary had not before him sufficient evidence in support of a prima facie case to justify him in holding the condition required by section 4 to be fulfilled—Fraser on Husband and Wife, vol. i, p. 852; Alexander v. Alexander, 1849, 12 D. 117. Argued for defender—The Lord Ordinary's award was justified. The Act of 1920 now placed an indigent husband in the same position as an indigent wife. The defender was unemployed and on the poor's roll. He had previously been alimented voluntarily by his wife. A wife's claim to an award in similar circumstances was undoubted—Fraser on Husband and Wife, vol. i, p. 853. Counsel also referred to Fraser on Husband and Wife, vol. i, p. 837; Hoseason v. Hoseason, 1870, 9 Macph. 37, per Lord President Inglis at p. 39; and Finzies v. Finzies, 28 S.L.R. 6.
The first question to be considered is whether this undoubted novelty in the practice of the consistorial Court is covered by the provisions of section 4. According to that section—given certain conditions which the section defines—the wife is brought under obligation to provide the husband out of her separate estate with such maintenance as he would in similar circumstances be bound to provide for her. It is clear that before the obligation can be made operative in any shape, the conditions which are precedent to the obligation must be established. And if this were a question not of an allowance of interim aliment but of a decerniture for future aliment in the final sense, there is no doubt that the conditions which the section prescribes would have to be established by evidence in the ordinary way. But the question of allowing interim aliment constantly arises in the course of proceedings such as these—usually at a stage of the case anterior to any allowance of proof—and the evidence upon which the Court has to proceed in awarding interim aliment is therefore different in quality from that which the Court would require if it were asked to pronounce a final decree. The evidence required to warrant an interim allowance of aliment in a consistorial cause has been described as a semiplena probatio, and consists of such materials, submitted to the Court, as present a prima facie case. Prior to the Act of 1920 the question of allowing interim aliment did not arise except as the consequence of a claim by the wife. The result of the Act is that it may now equally arise in consequence of a claim by the husband. There is nothing in the section to exclude its application to interim aliment; and I see no reason why the Court, in determining whether the conditions of her liability are fulfilled, should not proceed (in a case of interim aliment) on the same class of evidence as that hither to relied on in enforcing the husband's obligation in a similar case. It is a mistake, I think, to say that the obligation to provide interim aliment in a consistorial case is an obligation created by the decree. On the contrary, the decree would have neither validity nor justification if it were not that a legal obligation underlay it. What is true is that the decree for interim aliment is an act of regulative administration (in circumstances where the parties' true rights are in suspense) of an underlying and permanent legal obligation. I think, therefore, there is no reason why section 4 should not apply.
The second question is whether the Lord Ordinary had before him sufficient evidence in support of a prima facie case to justify him in holding the conditions required by section 4 to be fulfilled. The first of these is that the husband is unable to maintain himself. There was before the Lord Ordinary material, both in the form of averment and admission, bearing upon that question, and he determined that for the purposes of his interim decree the evidence was sufficient to show that the husband was unable to maintain himself. 1 see no ground for interfering with the Lord Ordinary's decision upon that point. The next is that the wife must have a separate estate, or a separate income, more than is reasonably sufficient for her own maintenance. Again, the record and the admissions of parties contain ample material upon which to form a prima facie judgment upon the facts with regard to that matter, and I do not see any ground for interfering with the manner in which the Lord Ordinary exercised his discretion. I think, therefore, that the reclaiming note should be refused.
Page: 555↓
The Court adhered to the interlocutor of the Lord Ordinary.
Counsel for the Pursuer— Maconochie. Agents— Pearson, Robertson, & Maconochie, W.S.
Counsel for the Defender— Macfarlane. Agent— W. S. Farmer, S.S.C.
