Scottish Court of Session Decisions

On 5th March 1884 decree of separation was pronounced in an action at the instance of Mrs Jane M'Cubbin or Stewart against her husband Thomas Stewart, hatter in Glasgow.

The sum of aliment decerned for was £250 in terms of a joint minute of parties. This sum was for the aliment of the pursuer, and also for the maintenance of the two daughters of the marriage, then aged fifteen and twelve respectively, who resided with the pursuer.

On 25th May 1886 Mr Stewart presented this petition for restriction of the amount of aliment to £52, on the ground that his business had fallen off, and that his income otherwise was insufficient to enable him to continue payment of the full amount.

Mrs Stewart lodged answers, in which she stated that she did not know the amount of the petitioner's income, nor anything as to the condition and prospects of his business.

The Court remitted to Mr Alexander Moore, C.A., to inquire into the circumstance of the parties and report, and granted diligence for the recovery of writings, and commission to the accountant to examine havers and receive their exhibits.

Mr Moore's report stated that the petitioner carried on the business of a hatter and hosier in three different shops in Glasgow, and that he had taken the opinion of a skilled party as to the probable profit realisable from the business of these shops, and that, from this opinion, combined with the information obtained from the petitioner's books and papers, it appeared that the income derivable by the petitioner from the business of the shops might be stated approximately at £200 per annum; that the petitioner

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appeared to be possessed of means, including the capital invested in his business, to the amount of about £8000, and that he had an income apart from his business of about £280 per annum; and that Mrs Stewart appeared to have no means other than her allowance from the petitioner.

There was no evidence as to what the petitioner's means or income was at the date of the decree for aliment.

Argued for the petitioner—The Court has always given a little less than one-fourth of the husband's income, and in the present case £85, the sum given in Lang's case, would be enough— Lang v. Lang, October 27, 1868, 7 Macph. 24 Lord (Justice-Clerk Patton, 25); Wotherspoon v. Wotherspoon, October 30, 1869, 8 Macph. 81; M'Millan v. M'Millan, July 20, 1871, 9 Macph. 1067. [ Lord President—Is there no evidence of a change of circumstances? A husband is only entitled to have the aliment restricted if there is a change in his circumstances since the date when the aliment was fixed.] Our information is that the petitioner has had to change his entire style of living. He offers to take his two daughters to live with him, and if they were suing for aliment that would be a sufficient answer to their claim. If the respondent wishes to keep them, the Court cannot take that into account in determining the present question. [ Lord President—We must either assume that the daughters are to remain with their mother, or we must enter into the merits, to see whether the circumstances of the case justify them in refusing to live with their father.]

Argued for the respondent—The only question is as to the amount of aliment which should be allowed to the respondent. The petitioner avers a material change in his circumstances since the aliment was fixed in the action of separation. But the report of the accountant does not even suggest such a change. Therefore, in the absence of any evidence to prove a change of circumstances, the aliment should remain the same as was formerly fixed by the petitioner himself. No doubt there is this change—that whereas formerly the petitioner was content that his two daughters should remain with their mother he now desires that they should reside with him. They, however, wish to remain with their mother, and she should receive aliment for them at the rate of £25 per annum for each— Symington v. Symington, March 20, 1874, 1 R. 871. The whole aliment which should be awarded to the respondent ought to be £150 at least. It is said that the rule is to give one-fourth of the husband's income as aliment. There is, however, no fixed rule, and the amount of aliment will depend on the circumstances of the husband and the source of his income.—The cases of Lang, Wotherspoon, M'Millan, supra cit.— Williamson v. Williamson, Jan. 27, 1860, 22 D. 599; Jameson v. Jameson, Feb. 20, 1886, 23 S.L.R. 402; Graham v. Graham, July 19, 1878, 5 K. 1093; Hay v. Hay, Feb. 24, 1882, 9 R. 667.

At advising—