Scottish Court of Session Decisions

At advising, on 5th February 1993:

LORD PRESIDENT (Hope)—This is an appeal from an interlocutor of the sheriff principal in an action of separation and aliment. The sheriff granted decree of separation of the defender from the pursuer, found the pursuer entitled to the custody of the two children of the marriage and made an award of aliment for the pursuer and the two children at the rate of £30 per week for each of them. The only questions which were before the sheriff principal related to the sheriffs decision to backdate his award of aliment for the pursuer and the two children. These also are the only questions which are before us in this appeal, since there is no issue about the amount of the aliment or the date to which the sheriff sought to backdate his awards.

The action was brought before the commencement of the Family Law (Scotland) Act 1985 as an action for divorce. The cause tabled on 13th August 1986, and by an interlocutor of that date the sheriff granted to the pursuer interim custody of the two children, Sharon, born on 27th March 1975, and Stuart, born on 14th May 1977. He also made an order for payment by the defender to the pursuer of interim aliment at the rate of £50 per week and found the children entitled to interim aliment from the defender at the rate of £50 per week for each child. There were before the court at that stage craves for divorce on the ground that the marriage had broken down irretrievably; for payment of a periodical allowance to the pursuer, and in the meantime interim aliment; for payment to her of a capital sum; for interdict against the defender from disposing of his assets, and for interim interdict; for custody of the two children; for aliment for the two children, and in the meantime for interim aliment; for interdict and interim interdict in terms of two further conclusions; for a power of arrest to be attached to the interdicts; and for expenses.

The Family Law (Scotland) Act 1985 came into force, with certain exceptions which are not relevant to this case, on 1st September 1986 in terms of the Family Law (Scotland) Act 1985 (Commencement No. 1) Order 1986 (S.I. 1986 No. 1237). On 3rd March 1988, the pursuer lodged a minute of amendment in which she sought to delete the crave for divorce, to substitute a crave for separation and to replace her claim for a periodical allowance and a capital sum on divorce with a claim for the payment of aliment. On 8th June 1988, the record was allowed to be opened up and amended to this effect, and the action thereafter proceeded as one for separation and aliment. The defender then made an unsuccessful attempt to obtain a reduction in the amount of the interim aliment. On 12th January 1989, the sheriff reduced the interim aliment to £20 per week for the pursuer and each of the two children, but on 7th February 1989 his decision was reversed by the sheriff principal. The defender made a further attempt to the same effect on 16th June 1989, when he lodged a notice of motion seeking to vary the awards of interim aliment to nil in each case. But the proof was by then imminent, and consideration of this motion was continued to the date for which the proof had been fixed. That diet was later discharged and a new date fixed, but no further consideration was given to the defender's motion at that stage.

A proof was heard on various dates between 6th December 1989 and 28th February 1990, but it was not until 18th March 1991 that the sheriff pronounced his final interlocutor for separation of the defender from the pursuer and made his awards of aliment. The part of his interlocutor which dealt with the question of aliment was in these terms:

"Finds the defender liable to the pursuer in payment of aliment for herself and for each of the children, said Sharon Ann McColl and Stuart Iain McColl, at rate of thirty pounds (£30) sterling per week, said aliment in respect of the said Sharon Ann McColl and Stuart Iain McColl to be paid to the pursuer qua tutrix and curatrix of the said children and to continue as long as they are in custody and unable to earn a livelihood, all said sums of aliment being payable weekly and in advance, with interest thereon at the rate of fifteen per centum per annum on each weekly payment from the time the same falls due until payment; ordains that a concurrent receipt by the pursuer and either of the said children while in minority, shall be regarded as sufficient evidence of receipt of alimentary payments in respect of that child; backdates the awards of aliment made herein to 1st February 1989."

On 15th August 1991, the sheriff principal sustained the pursuer's appeal against the sheriffs order backdating his awards. He varied the sheriff's interlocutor by deleting from it the words "backdates the awards of aliment made herein to 1st February 1989", to the effect that aliment at the reduced rate of £30 per week for the pursuer and each of the two children was to be payable from 18th March 1991 when the sheriff pronounced decree.

What the sheriff sought to do in this case may seem to have had much to commend it in the light of the view which he formed on the evidence. Section 3 (1) (c) of the Family Law (Scotland) Act 1985 gives power to the court to backdate an award of aliment made under the Act. The sheriff was satisfied, after an examination of the defender's financial position, that his ability to pay aliment had been substantially reduced since August 1986 when he was first ordered to pay interim aliment. The defender carried on business as a fishmonger, and his only capital consisted of the matrimonial home and his business assets which were largely burdened by debt. His sole income was from his business, and there had been a downturn in its profitability while the action was in progress. There was evidence that his poorer financial position went back to at least 1987, but since he had maintained his accustomed standard of living during 1987 and 1988, and had not applied for a variation until December 1988, the sheriff saw no reason why the pursuer and the children should be made to suffer because of the way he had arranged his affairs during that time. But he was satisfied that by December 1988 the defender had been forced to adapt himself to his reduced circumstances, and that from then on he had not been able to pay aliment at a rate beyond that which the sheriff had decided to be a reasonable award. His conclusion was that it would be reasonable in the circumstances to take the end of the financial year of the defender's business on 31st January 1989 as the appropriate date for backdating.

There is no doubt that what the sheriff thought he should do was to reduce the amount of aliment payable from that date from £50 to £30 for the pursuer and each of the two children, resulting in an overall reduction in the defender's liability from £150 to £90 per week. This was still more than the defender said he could afford. It should be noted that he had not been obtempering the interim order since about May 1987 when there was an unsuccessful attempt at reconciliation which came to an end in July of that year. Since then, when he had been paying aliment, he had done so at the rate of a total amount of £25 per week. We were informed that the defender is also substantially in arrears in payment of the amount of aliment ordered by the sheriff in terms of his final decree. There are accordingly substantial claims for payment of arrears of aliment in this case which the pursuer has been taking steps to enforce. Nevertheless there was no challenge by either party to the sheriffs view of the evidence, nor has it been suggested that it was unreasonable for him to consider reducing the defender's liability to the pursuer and the two children to an amount of £30 per week by way of aliment for each of them.

In this situation I would have had little hesitation in deciding to support what the sheriff did and to affirm his interlocutor, had it not been for the questions which have been raised as to the competency of the backdating of the awards of aliment and the effect of this on the awards of interim aliment. It requires to be stressed at the outset that the jurisdiction which the sheriff was invited to exercise in this case was one conferred on him not by the common law but by statute. And it became clear in the course of the argument that it was very difficult to find a satisfactory answer to the questions raised under the Family Law (Scotland) Act 1985 by what the sheriff wished to do.

The first question is whether the 1985 Act applies at all in this case, since the action was raised before the date when that Act came into force. There can be no doubt that the claims made in the action at the outset were not made under the 1985 Act. The pursuer's claim at that stage was for a periodical allowance as a financial provision on divorce under sec. 5 of the Divorce (Scotland) Act 1976. Her claim for interim aliment pendente lite was based on the common law principle that a husband is bound to support his wife during the subsistence of the marriage: see Donnelly v. Donnelly 1959 S.C. 97. The obligation to aliment and the obligation to adhere were, as Lord Justice-Clerk Grant said in Beveridge v. Beveridge 1963 S.C. 572 at p. 580, correlative to each other, but it was settled by the authorities that a wife was not disentitled to interim aliment where her refusal to adhere was due to her husband's cruelty or adultery: Barbour v. Barbour 1965 S.C. 158. As for the children, their claims for aliment and for interim aliment arose under sec. 9 of the Conjugal Rights (Scotland) Amendment Act 1861, which provided that in any action for separation or for divorce the court might from time to time make such interim orders, and might in the final decree make such provision as to it should seern just and proper, with respect to the custody, maintenance and education of any pupil children of the marriage to which the action related. That provision was extended to children of under 16 years of age by sec. 1 of the Custody of Children (Scotland) Act 1939. The provision of sec. 9 of the 1861 Act and of sec. 1 of the 1939 Act in regard to maintenance were repealed by Sched. 2 to the Family Law (Scotland) Act 1985. But they were still in force on 13th August 1986 when the cause was tabled and the orders were made for interim aliment.

One of the difficulties created by the 1985 Act is a lack of clarity as to the extent to which its provisions about aliment and interim aliment were to affect actions already current at the date of its commencement. Section 27 (1) of the Act defines the word "action" as meaning an action brought after the commencement of the Act. At first sight it might seem that the effect of this definition was that the provisions of the Act were to apply only to actions raised after that date. There is no difficulty about this so far as actions for divorce are concerned. The provisions of sec. 8, about the orders for financial provision for which either party to the marriage may apply in an action of divorce, when read subject to the definition of "action" in sec. 27 (1), can apply only to actions of divorce brought after the date of commencement. Section 28 (3) of the Act preserves the operation of sec. 5 of the Divorce (Scotland) Act 1976 in regard to orders for financial provision in actions of divorce brought before the commencement of the 1985 Act, despite the repeal of that section by Sched. 2 to the 1985 Act as from its commencement. Accordingly the power to make an order for financial provision under the 1985 Act was to be available only in the case of actions raised after its commencement.

On the other hand, no such transitional provision is made in the case of the repeal of the word "maintenance" in sec. 9 of the 1861 Act, as amended by sec. 1 of the 1939 Act, and the expression "action for aliment" is the subject of a separate definition in sec. 27 (1) from the expression "action", which makes no reference to the date when the action was brought. Section 27 (1) provides that the words "action for aliment" have the meaning assigned to them by sec. 2 (3) of the Act, by which the expression is defined as meaning a claim for aliment in proceedings referred to in subsecs. (1) or (2) of that section, neither of which uses the word "action". It was on a consideration of these provisions that Lord Clyde reached the view in Matheson v. Matheson 1988 S.L.T. 238 at p. 240J–K that the scheme of the Act was to introduce a new regime in relation to aliment applicable to all actions, current and future, but to make the new measures for financial provision on divorce applicable in their entirety only to actions raised after the commencement of the 1985 Act: see also his observations in Donaldson v. Donaldson 1988 S.L.T. 243 at p. 245F. It seems to me that this approach is consistent with the provisions of sec. 1 (3) of the Act, which provides that any obligation of aliment arising under a decree or by operation of law and subsisting immediately after the commencement of the Act shall, except insofar as consistent with that section, cease to have effect from the commencement of the Act. As Lord Clyde said in Matheson at p. 2401, sec. 1 (3) preserves existing obligations of aliment but only so far as consistent with the new regime. I respectfully agree with his conclusion that the new regime in relation to aliment applies to all actions current and future as from the date of commencement of the 1985 Act. Like him I have not found it easy to apply this view to the provisions of sec. 6 about interim aliment, but I agree with him that it would be unreasonable to construe the Act in a way which would mean that secs. 1 to 5 were available for current actions and sec. 6 was not.5

The question whether the sheriff had power to backdate aliment in this case is, however, a relatively simple matter to answer from this starting point. I do not have any difficulty at all about this as regards the claim for aliment for the pursuer which was substituted by amendment in June 1988 for her previous claim for a periodical allowance. This amendment was made when her action was altered from one for divorce to one for separation and aliment. It is clear that what the pursuer was seeking to do at that stage was to enforce the defender's obligation of aliment, owed to her as a husband to his wife, in terms of sec. 1(1) (a) of the 1985 Act. This was a claim for aliment under sec. 2 (2) (a), and so far as this claim was concerned there can be no doubt that the sheriff had power, since this was an action for aliment as defined by sec. 2 (3), to backdate the award of aliment in terms of sec. 3 (1) (c) of the Act. The question whether that power was available to him also in regard to the claim for aliment for the children is more difficult. The sheriff's reasoning on this point is that, although this claim was originally a claim in proceedings for divorce, it was, by the date of his decree, a claim in proceedings for separation and this was good enough to enable him to say that their claim was an action for aliment brought after the commencement of the Act. The sheriff principal thought that there was a good deal of force in the contrary argument that both the pursuer's claim and the children's claim, having been made in an action raised before the commencement of the 1985 Act, were outwith its powers and that there was no power to backdate in the case of either claim.

As I have already indicated, I disagree with the sheriff principal about the pursuer's claim for aliment, since this claim was not made until the action became one of separation well after the date when the Act came into force. I was at first inclined to agree with his view about the children's claim because, like him, I do not find the sheriffs reasoning on this point convincing. The fact that the pursuer's action was changed from one of divorce to one of separation had no effect on the children's claim for aliment, either in terms of the 1985 Act or on the face of the pleadings. The children's claim for aliment is a separate claim from that of their parent, since the obligations of aliment are defined by sec. 1 (1) of the Act separately. For the purposes of sec. 2 (3) therefore, which defines the expression "action for aliment", the claims for aliment by the pursuer on her own behalf and, under sec. 2 (4) (c), on behalf of her children, were to be seen as separate actions. As for the pleadings, it is one of the puzzling features of this case that the crave for aliment for the children remained unamended from the date when the action was raised until the date of final decree. When he came to pronounce his final decree, the sheriff granted an order which was in terms of that crave, restricting the award of aliment to the period while the children were in the pursuer's custody and unable to earn a livelihood. In the absence of any provision to the contrary it would seem that the effect of this order was to confine the award of aliment to the period when the children were under the age of 16 years, although sec. 1 (5) of the 1985 Act defines "child" for the purposes of the obligation of aliment as a child under the age of 18 years. In Matheson Lord Clyde held that it was open to the pursuer in an action raised before the commencement of the 1985 Act to amend the conclusion so as to extend the right to apply to the court anent aliment until the children's 18th birthdays, but no amendment to that effect was sought in this case. The wording of the crave and of the sheriffs interlocutor both seem to provide support for the sheriff principal's view that this was a claim made before the commencement of the Act to which the statutory power of backdating was not available.

On further reflection, however, I have reached the opinion that this view cannot be reconciled with Lord Clyde's conclusion in Matheson that the new regime about aliment applies to all actions current and future at the date of commencement of the Act. The repeal, from the date of commencement, of the reference to "maintenance" in sec. 9 of the 1861 Act as amended by sec. 1 of the 1939 Act, must be held to apply to all such actions, as Lord Clyde noted in Donaldson at p. 244L. As from the date of commencement any obligation of aliment owed by a father or mother to his or her child, subsisting before that date by operation of law, was replaced by an obligation of aliment under sec. 1 of that Act. Accordingly the claim which the pursuer was making on behalf of her two children became, as from the date of its commencement, a claim made under that Act and not under the pre-existing law. It was thus a claim for aliment in proceedings referred to in sec. 2 (2) (a), and accordingly was an action of aliment for the purposes of sec. 2 (3) and also for the purposes of sec. 3 (1) (c), which gives the power to backdate. There was no power to backdate any award of aliment under the repealed provisions of sec. 9 of the 1861 Act as amended, but when the sheriff came to pronounce decree he was exercising the power conferred on him by the 1985 Act by which these provisions were repealed. I am satisfied therefore that, in the case of the children's claims also, the sheriff had power under sec. 3(1) (c) to backdate the award.

This brings me to the next question, which really lies at the heart of this case. This relates to the effect of the backdating of the awards of aliment on the awards of interim aliment which were made when the case was tabled, before the 1985 Act came into force, and which remained in force right up to the date when the sheriff pronounced decree. The defender had not been implementing these awards for a long time, and it was no doubt in order to reduce his liability for unpaid amounts of interim aliment that he invited the sheriff to backdate his awards of aliment. Having rejected the pursuer's argument that this was incompetent, the sheriff proceeded to order backdating on the view that this would be its effect. But he said nothing in his interlocutor about the award of interim aliment. I find myself in agreement with the sheriff principal that the effect of it was that the pursuer and each of the two children were entitled to interim aliment at the rate of £50 per week until the date of the final decree, and in addition to a backdated award of aliment at the rate of £30 each per week from 1st February 1989. As the sheriff principal said, this is an unusual result, and reference to the sheriffs note shows that it is at variance with what he intended.

Counsel for the defender invited us to hold that, since the sheriff makes it clear in his note that he intended to reduce the defender's liability over the relevant period, we should construe his interlocutor to that effect. At one point in his argument counsel for the pursuer seemed to be content that we should adopt this approach. But I do not see how we can modify the effect of the previous interlocutor of 13th August 1986 by reference to the sheriff's note of 18th March 1991, in the absence of any provision in the sheriff's interlocutor of that date to show that he was varying that prior interlocutor. I agree with the sheriff principal that what the sheriff was really seeking to do was to vary the awards of interim aliment and to backdate his variation of these awards. Counsel for the defender then invited us to cure what on this view was an omission from the sheriff's interlocutor by inserting appropriate words in it to this effect. But this gives rise to still further difficulties which I have, with regret, found to be insuperable.

According to counsel for the defender's argument, what the sheriff sought to do, but failed to do expressly, was competent in the light of his decision to backdate the award of aliment at the rate of £30 per week. It was, he said, unheard of for a party to be entitled at the same time to both aliment and interim aliment. The two concepts were so inconsistent with each other that the awards of aliment must be taken to have terminated the awards of interim aliment. This was, by necessary implication, the result of the exercise of the power to backdate under sec. 3 (1) (c), and we should recognise the practical consequences of the sheriffs decision by inserting appropriate words in his interlocutor. As an alternative to this approach he submitted that the sheriff had power under sec. 6 (3) of the Act to vary or recall the awards of interim aliment, and that he had power to do this retrospectively by setting a terminating date for these awards. He pointed out that the awarding of interim aliment pendente litewas inevitably an imprecise exercise. Sheriff Principal R. R. Taylor had made this point in his note dated 7th February 1989 when he recalled the sheriffs interlocutor of 12th January 1989 reducing the rate of interim aliment from £50 to £20 per week. His comment was that, in a case where the facts were so differently stated by the parties, the court could only proceed on a broad axe basis and that an investigation of the correctness or otherwise of the defender's accounts had to be left over for proof. Counsel's information was that the sheriff who heard the defender's motion for variation on 16th June 1989, who was a different sheriff from that who heard the proof, expressed his unwillingness to consider variation of the amount of interim aliment when the proof in the action was imminent, and that he had also made reference to the backdating provisions in sec. 3 (1) (c) as a means by which the court could avoid any prejudice. Whether or not his information on this point was accurate, there was nevertheless a widely held view that the court was reluctant to vary awards of interim aliment on contradictory ex partestatements when it was about to hear evidence. It was therefore entirely appropriate for the sheriff to review the whole matter once he was in possession of all the evidence and, having done so, to give effect to his conclusion that the defender was, after all, not able to pay the full amount for which he was liable under the interim awards.

It seems to me that there is much good sense in this argument, but I do not think that it answers the problem whether what the sheriff was seeking to do was within the powers of the Act. I take first the question whether it can be said that an order for backdating has, by necessary implication, the effect of terminating an award of interim aliment as from the date to which the award of aliment is backdated. There was an initial attraction in this argument on the view that both awards were designed to quantify the amount of the obligation of aliment which was sought to be enforced. At first sight the awards of aliment and of interim aliment pendente lite are mutually inconsistent with each other and they ought not to be allowed to coexist. Interim aliment pendente lite is designed to cover the period prior to the date of final decree when, by necessary implication, it comes to an end, while aliment properly so called is an amount fixed as at the date of the decree after a review of all the evidence at the proof. But it seems to me that this approach conflicts with the rule that an award of interim aliment pendente lite remains enforceable during the dependence of the action unless varied or recalled by a further order of the court. Irrespective of whether the awards have been fully implemented, the sums payable under the awards remain exigible against the defender and the pursuer is entitled to enforce them according to their terms. This rule has been given statutory recognition in regard to interim aliment under sec. 6 of the Act, which provides that an award under subsec. (2) of that section may be varied or recalled by an order of the court. There is no indication either in that subsection or in sec. 3 (1) (c) that an order for the backdating of aliment is to have the effect of varying or recalling a previous award of interim aliment under sec. 6. Furthermore, sec. 27 (1) of the Act provides that the expression "aliment" does not include aliment pendente lite or interim aliment under sec. 6 of the Act. So it cannot be suggested that these are treated by the Act as being embraced in a single claim for the enforcement of the same obligation, with the result that an order backdating one necessarily affects the currency of the other. As I read the Act they are treated as separate claims, and even though an order may be made backdating aliment, an award of interim aliment under sec. 6 remains payable until the date of the disposal of the action or such earlier date as the court may have specified when making that award, unless it has itself been varied or recalled by an order of the court.

I do not think that there could be an objection on the grounds of competency, therefore, to the making of an order for the backdating of aliment which was intended to supplement a previous order for aliment pendente lite or for interim aliment under sec. 6 of the Act. The sheriff expressed a contrary view, when he said that where there is in force an award of interim aliment there cannot be a backdating of the final decree. I find myself unable to agree with him on this point, on a proper construction of the provisions of the Act. Furthermore it is not difficult to imagine circumstances where this might be appropriate, given the imprecise nature of the information on which the courts must proceed in disputed cases at the interim stage. It may be that the evidence at the proof will reveal that the amount of interim aliment which was ordered was quite inadequate having regard to the defender's resources and that, even although he has fully implemented that award, he should be ordered to pay more to the pursuer or to the children by way of aliment for a period prior to decree.

But a backdating order which was intended to reduce the liability will create difficulty if sums have already been paid under the decree for the interim award. The 1985 Act has recognised this point in sec. 5, which provides for the variation or recall of a decree granted in an action for aliment brought before or after the commencement of the Act. Subsection (4) of that section provides that, where the court backdates an order under that section, as it has power to do because the effect of subsec. (2) is that the power under sec. 3 (1) (c) applies to orders made under sec. 5, it may order any sums made under that decree to be repaid. But in view of the definition of "aliment" in sec. 27 (1), it is clear that that section does not apply to awards of aliment pendente lite or of interim aliment made under sec. 6 of the Act. The absence of any provision in the Act to enable sums paid under an award of interim aliment pendente lite or interim aliment under sec. 6 to be repaid as a consequence of the backdating order under sec. 3 (1) (c) is a further indication that a backdating order does not, by necessary implication, have the effect of reducing or terminating the liability for payment under such awards. It may seem illogical that the power to backdate can be used to increase, but not to reduce, the total amount of aliment. But, since the provisions of sec. 3 (1) (c) give an unqualified discretion to the court to backdate the award in an action for aliment, and since Parliament must have been well aware that awards of interim aliment are very commonly made in such cases, I do not think that it is open to us to say that this power cannot be exercised in respect of a period where there is in force an award of interim aliment. The existence of such an award is, however, a circumstance to which the court must have regard in considering whether or not a backdating order is appropriate.

The remaining question is whether, as counsel for the defender submitted, there is power in sec. 6 of the Act to backdate a variation or recall of an award of interim aliment. There is an initial difficulty here in that the awards of interim aliment in this case, having been made on 13th August 1986 prior to the commencement of the 1985 Act, were not awards of interim aliment made under sec. 6 (2) of that Act. Since the power to vary or recall under sec. 6 (4) applies only to awards made under sec. 6 (2), it seems to be clear that this is not a power which could be exercised in this case. Any variation would have to be made in the exercise of a power to vary which the court could exercise according to the law and practice in force prior to the commencement of the 1985 Act. According to that law and practice orders for variation or recall of awards of interim aliment were effective from the date of the order but not retrospectively. The power to backdate is an entirely new concept, which depends upon the powers given to the court by the 1985 Act. But even if the power to vary under sec. 6 (4) of the 1985 Act was available, it could not in my opinion be used to backdate the variation or recall. The absence of an express power to backdate, in contrast to that given in sec. 3(1) (c), and of an express power to order the repayment of any sums made under the award, in contrast to that given in sec. 5 (4), both point inevitably to the conclusion that any variation or recall takes effect only from the date when the court makes its order, and that it cannot make an order retrospectively from any earlier date. The assumption must be that awards of interim aliment under sec. 6 will be implemented according to their terms, and that if there is to be a power to backdate an order for variation or recall, there must also be a power to order the repayment of sums paid under the award. Consequently, the absence of any power to order the repayment of sums paid under the award is a clear indication that the power in sec. 6 (4) cannot be exercised retrospectively, and accordingly that this alternative argument, even if it was relevant to the circumstances of this case, cannot succeed.

For these reasons I do not think that it is open to us to give effect to the sheriffs intention by re-writing his interlocutor so as to backdate a variation or recall of the awards of interim interdict. The only course which we can take is that which has already been taken by the sheriff principal, which was to delete from the sheriffs interlocutor the order for backdating which, if it was allowed to stand, would result in an increase in the defender's overall liability for a period during which the sheriff wished him to pay a reduced amount. I have reached this conclusion with regret, because it seems to me that, on the undisputed view which the sheriff took of the evidence, it was appropriate that the defender's overall liability should be reduced. The court's reluctance to alter the interim awards when the proof was imminent, and the long time when the case was at avizandum, both point to the good sense of backdating the reduced liability if this could be done. The absence of a power to backdate an order for variation or recall of interim aliment seems to be inconsistent with the power given to the court by sec. 3 (1) (c) to backdate an award of aliment, and it may be that there is a defect here in the statute which should be corrected. Counsel for the defender asked us to recognise that Parliament could not foresee every circumstance and he invited us to approach the legislation on a common sense basis and, as he put it, in an adventurous manner so as to cure the difficulty which had emerged in this case. Had the problem been one of ambiguity there would have been much to be said for this approach to give effect to the presumed intention of Parliament. The problem in this case, however, is that there is a gap in the legislation which cannot be filled on any reasonable approach to the wording of the Act. It must therefore be left to Parliament to consider whether the legislation should now be amended to enable the court, when backdating an award of aliment, to order a corresponding variation or recall of any interim order in respect of the same obligation of aliment, and to order the repayment of any sums paid under that award.

For these reasons, which differ in some respects from those given by the sheriff principal, I would refuse this appeal and affirm his interlocutor.

Lord Allanbridge and Lord Cowie concurred.