An interim separate allowance will not be given by the Court, to a wife who has only commenced an action of separation.
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Isabella Maxwell brought an action of separation before the Commissaries against her husband Alexander Wallace. In the course of this action she presented a petition to the Commissaries, praying them “to ordain Mr. Wallace to pay to her, or to her solicitor, the sum of £200 Sterling, or such other sum as might seem proper, towards interim aliment and defraying the expenses of this process.” This petition the Commissaries refused. On this she presented a bill of advocation to the Court of Session, which Lord Craig, Ordinary on the bills, appointed to be answered. The answers not being given in during three weeks, she presented a note to Lord Cullen, then Ordinary on the bills, praying for an immediate remit to the Commissaries to grant her the interim allowance she had demanded. His Lordship appointed the bill to be printed; and reported the case. It was pleaded for the pursuer, That she was ill used by her husband, and could not live with him, so that she required a separate aliment: That if she were defender in an action of divorce, she would have an interim allowance for that, and expenses of process; and it would be hard to deny it to her when she was pursuer in an action of separation: That if this were refused, such actions could not be maintained by wives at all.
The defender denied the ill usage; and stated, that he was willing to receive her into his family, so that she had no need of separate aliment; and that it was contrary to the establised rules of the Commissary Court, which had always been followed in such actions, to grant any interim allowance in such cases.
The Court thought the demand premature; and therefore remitted to the Ordinary to refuse the bill.
Lord Ordinary, Craig.Joseph Cauvin, W. S. Agent.
Fac. Coll. No. 36. p. 126.
