Scottish Court of Session Decisions

On 9th February 1880 Mrs Eliza Catherine Liddell or Watson raised an action of divorce against her husband Hugh Watson. The summons contained conclusions for the custody and aliment of the children of the marriage.

On 10th March 1880 the Lord Ordinary ( Craighill) pronounced an interlocutor, in which, after granting decree of divorce, he proceeded:—“Further, of consent of the defender, finds the pursuer entitled to the custody and keeping of Andrew Gordon Watson and John Liddell Watson, the children of the pursuer and defender, for the present, and until the further orders of the Court.… Ordains the defender to make payment to the pursuer of the sum of £75 sterling yearly, as aliment of the said Andrew Gordon Watson and John Liddell Watson, the children of the marriage of the pursuer and defender … so long as the said children shall remain in the custody of the pursuer.… Reserving to either the pursuer or the defender at any time to move the Court in the present action to increase or diminish the aliment now awarded to the pursuer for said children should a change of circumstances occur rendering such an increase or diminution

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necessary or expedient in the opinion of the Lord Ordinary or the Court.”

At the time at which the said interlocutor was pronounced the two children referred to therein were aged respectively four years and three years.

After decree had been pronounced, the defender, in consideration of the recal by the Court of the inhibition and arrestment used on the dependence of the action, executed an assignation in favour of certain trustees of the bond and disposition in security therein specified, to the extent of £3000, to be held by the trustees for payment of the aliment out of the interest thereof, and if necessary, out of the principal.

In 1886 the process was wakened on the motion of the defender, and by interlocutor dated 27th January 1887 the Lord Ordinary ( Fraser) refused the motion made by the defender in a minute for a diminution of the aliment awarded to the pursuer for the maintenance of the children.

On 10th July 1895, on the motion of the pursuer, the Lord Ordinary ( Kyllachy) again awakened the cause, and allowed a minute for the pursuer to be received, which, after reciting the previous stages of the process, went on to crave his Lordship to increase the aliment payable for the said children to the sums of £150 per annum and £120 per annum respectively. The facts upon which this motion was founded were thus set forth by the pursuer:—“The said Andrew Gordon Watson is now nineteen years of age, and has decided to become a medical practitioner. His professional education will cost about £40 per annum for the next five years, and the cost of his board and maintenance, exclusive of education, is not less than £140 per annum, in all £180 per annum for Andrew Gordon Watson. The said John Liddell Watson is now eighteen years of age, and is at present receiving private tuition from Mr Crawford, who prepares young men for examinations preliminary to professions, and he is also desirous of becoming a doctor of medicine. The cost of his hoard and maintenance, exclusive of education, is not less than £140 per annum, and his present education costs about £25 per annum. If his intention is carried out, the expenditure on him will not be less than that on his brother, i.e., in all, £180 per annum; and in any view the present aliment falls far short of the expenditure required for said Andrew Gordon Watson and John Liddell Watson. It is impossible to complete the education of the said Andrew Gordon Watson and John Liddell Watson so as to enable them to earn their own living without an increase of the said aliment.”

On 10th October 1895 the defender lodged a minute, in which, after referring to the interlocutors of Lord Craighill and Lord Fraser, he stated:—“Since the dates of the interlocutors above quoted, the circumstances have entirely changed. The two sons of the pursuer and defender have now nearly attained majority, the elder son being upwards of twenty years of age, and the younger nearly nineteen. They have thus reached an age when they might either be supporting themselves, or at least contributing something for their maintenance. On the other hand, the defender's condition has been reduced to one of absolute want through a succession of losses and misfortunes, and it is only the generosity of friends which has saved him from starvation. He has endeavoured to obtain remunerative employment, but without success, principally owing to the fact that he never received any professional or business training, and he is now unfortunately in a delicate and unsatisfactory state of health, simply from the want of the necessaries of life.… Since the year 1880, when the children were only four or five years of age, the pursuer and they have been in the receipt of a joint income of £450 per annum (inclusive of the annuity of £300 provided and secured to the pursuer by the marriage-contract), derived entirely from the defender's means, so that there has been an ample sufficiency of funds available for equipping the children and fitting them for earning their own livelihood, and if this has not been properly looked after and attended to by the pursuer, she is solely responsible, as she has had the custody of the children till the present time.”

The defender accordingly craved the Court to put an end to the aliment hitherto paid by him for behoof of his two children, and to order the balance of the said sum of £3000 to be made over to him by the trustees to whom it had been by him conveyed.

On 17th October 1895 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—“The Lord Ordinary having heard counsel on the minute for the pursuer, and answers thereto for the defender, Nos. 39 and 40 of process, and also the minute for the defender, No. 41 of process, refuses the motion made by the pursuer in said minute for an increase of the aliment awarded to the pursuer for the maintenance of their children, Andrew Gordon Watson and John Liddell Watson, by the interlocutor of 17th March 1880; also refuses, in hoc statu, the motion made by the defender in said minute No. 41 of process that the aliment should now terminate: Grants leave to reclaim.”

The defender reclaimed.

The Conjugal Rights Amendment Act 1861 (24 and 25 Vict. c. 86), sec. 9, enacts—“In any action for separation a mensa et thoro, or for divorce, the Court may from time to time make such interim orders, and may in the final decree make such provision, as to it shall seem just and proper, with respect to the custody, maintenance, and education of any pupil children of the marriage to which such action relates.”

Argued for the defender and reclaimer—(1) Prior to the Conjugal Rights Amendment Act 1861 the Court had no right to grant aliment or to pronounce an order with respect to custody of children in a process of divorce. The interlocutor of Lord Craighill must therefore be read in the light of that Act, from which alone he derived his powers, and his decerniture for

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aliment must be limited to the pupillarity of the children— Symington v. Symington, March 18, 1875, 2 R. (ILL.) 41. (2) But in any case two conditions were essential to aliment becoming a binding obligation on a parent—indigence on the part of the child, and superfluity on the part of the parent— Reid v. Moir, July 13, 1866, 4 Macph. 1060, per Lord Justice-Clerk, p. 1063. Here the children were of an age to support themselves, while the father was so far from superfluity that he was unable to maintain himself. (3) Lastly, if aliment were exigible from the father, it must be sued for by the minor children themselves, and not by their mother— Hardie v. Leith, October 31, 1875, 6 R. 115.

Argued for the pursuer—The children here were still de facto in the custody of the mother; aliment was the correlative of custody; the children were entitled to aliment suitable to their condition in life; therefore the pursuer's motion should be granted. The true meaning of section 9 of the statute was that the Court might do incidentally in an action of divorce what in virtue of its nobite officium it had a right to do on a separate application— Lang v. Lang, January 30, 1869, 7 Macph. 445. There was not a word in the statute to indicate that an order competently pronounced under section 9 should not continue in force after the children attained minority. In any event, the defender had, since the children attained minority in 1890, acquiesced in the payments made under the judgment of the Court, and was therefore barred from maintaining that aliment should cease. As for his allegation of indigence, it must be kept in mind that in his marriage-contract he had bound himself to “aliment, maintain, and educate” his children in a manner suitable to their station in life.

At advising—