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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wotherspoon v. Wotherspoon [1869] ScotLR 7_43 (30 October 1869)
URL: http://www.bailii.org/scot/cases/ScotCS/1869/07SLR0043.html
Cite as: [1869] ScotLR 7_43, [1869] SLR 7_43
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SCOTTISH_SLR_Court_of_Session
Page: 43↓
Court of Session Inner House Second Division.
v.
Facts:
Circumstances in which the Court fixed the amount of aliment to be paid to a wife judicially separated from her husband on proof of cruelty.
A wife brought an action of separation and aliment against her husband on the ground of ill-treatment and cruelty. A proof having been led, the Lord Ordinary ( jerviswoode) pronounced the following interlocutor ;—“The Lord Ordinary having heard counsel and made avizandum and considered the proof with the record, productions and whole process: Finds, in point of fact, that the defender has been guilty of grossly abusing and maltreating the pursuer, his wife: Therefore finds that the pursuer has full liberty and freedom to live separate from the defender, her husband ; and decerns and ordains the defender to separate himself from the pursuer, a mensa et thoro, in all time coming: Decerns against the defender for payment to the pursuer of the sum of £40 sterling per annum in name of aliment, payable half-yearly and in advance, at the terms, and in the portions concluded for, with the legal interest of each term's payment from the time the same fulls due till payment thereof, but under deduction always of such sums as have already been paid to account of said aliment: Finds that the pursuer is entitled to the custody of Archibald Wotherspoon, a pupil, the only child of the marriage between the pursuer and defender, during the years of his pupilarity, and decerns against the defender for payment to the pursuer of the sum of £10 sterling per annum for the aliment of the said Archibald Wotherspoon, as long as he shall remain in the custody of the pursuer, payable half-yearly and in advance, at the terms and in the portions concluded for in the summons, with the legal interest of each term's payment from the time the same falls due until payment thereof, but under deduction of any sums which have been already paid to account of said aliment: Finds the defender liable to the pursuer in the expenses of process so far as not already paid: Allows an account of such expenses to be lodged, and remits the same to the auditor, to tax and to report.”
The sum allowed by the Lord Ordinary as aliment was the same amount as the parties had stipulated for under a voluntary contract of separation.
The wife reclaimed.
Paterson for her.
J. M. Duncan in answer.
At advising—
The husband's income, arising from heritable property, is admitted to amount to £268, besides the interest on the balance of the price of a house, which balance amounts to £250. The total income may therefore be assumed at £278 annually. Taxes and repairs reduce this by £85 ; leaving the free income £243.
It is said that the husband pays to an unmarried daughter £100 per annum, and £20 to a sister in reduced circumstances. It has been farther explained to us that the wife has an annuity of £30 secured to her from her first husband's estate, and she has also an allowance of £80 a-year from her
husband’s trustees for the aliment of her son by her first marriage. This last allowance, however, is precarious in itself, and as her son is now sixteen years of age, must shortly terminate.
No inflexible rule can be laid down in such cases. In the last reported case before this Division of the Court—that of Lang v. Lang—it was stated that a fourth of the husband's free income had been usually awarded, and was as near a general measure of liability as the decisions appeared to establish. Every case of the kind, however, must depend on its special circumstances; the husband must not be left unreasonably impoverished, while the wife who has been compelled to separation owing to the ill-treatment of the husband must be fairly and favourably considered.
The allowance given by the husband to the daughter cannot be taken into account as a deduction from his income, although the expense of maintaining her in family must be deducted in the estimate of his available means. The £20 a-year paid to his sister can hardly come into competition with the wife's claim; but the sum in this case does not materially affect the result.
On the other hand, the £30 awarded to the wife by the trustees of her late husband must be thrown out of view, as precarious in itself and temporary in its nature. The annuity derived from her husband's estate is, on the other hand, permanent, and must enter into our calculations.
On the whole, I am of opinion that the sum awarded by the Lord Ordinary is not sufficient, and that an addition of £15 a-year ought to be allowed. The Court award £55 per annum.
The other Judges concurred.
Agents for Pursuer— J. & A. Peddie., W.S.
Agents for Defender— J. & R. Macandrew., W.S.