Scottish Court of Session Decisions

On 29th November 1895 Mrs Elizabeth Taylor Cree or Shirrefs brought the present action, which was for separation and aliment, against John Gordon Lumsden Shirrefs, her husband. On 7th January the Lord Ordinary ( Kincairney) decerned against the defender for payment of £20 in name of aliment, and also for payment of £20 to account of her expenses. Thereafter the pursuer discovered that she had grounds for an action of divorce. Accordingly she brought an action of divorce, and on 27th February 1896 the diet of proof in the present action was discharged. Proof was led in the action of divorce shortly before the close of the Winter Session, and decree of divorce in pursuer's favour was issued on 24th March 1896, during the Spring vacation. No decree for aliment was granted in the course of the action of divorce.

On 12th May, being the first Court day after the decree of divorce was pronounced, the pursuer moved in the action of separation and aliment, in which there had been no further procedure since the discharge of the diet of proof, for decree for payment of an additional sum in name of aliment.

Page: 615↓

The Lord Ordinary on the same day issued the following interlocutor:—“Refuses the motion, and in respect of the decree of divorce in the action between the parties, dismisses this action and decerns: Finds the pursuer entitled to expenses, under deduction of the expenses already allowed,” &c.

The pursuer reclaimed, and argued—There could be no doubt that the defender was bound to aliment the pursuer during the dependence of these actions, and that she was entitled to a larger amount in name of aliment than she had already received. Decree of divorce was pronounced during vacation and this motion was made at the earliest opportunity. The pursuer had been alimented by third parties, and this was the most convenient and least expensive way for them to obtain repayment. The only alternative was a new action against the defender, which would be a needless expense. It could not be maintained that the application was incompetent. This was not a demand for arrears of aliment, and so M'Millan v. M'Millan, July 20, 1871, 9 Macph. 1067, was not in point. In Donald v. Donald, May 26, 1860, 22 D. 1118, opinions were reserved as to what would have been the decision if debt had been incurred, as was the case here. If it were competent to grant the application, it was unquestionably expedient.

Argued for the defender—It was incompetent to grant this application after decree of divorce had been pronounced. An action for aliment alone was incompetent, and in this action the conclusion for separation having been superseded by the decree of divorce, the conclusion for aliment, which was necessarily ancillary to that for separation, could not now receive effect. An award of aliment on this motion would not be an answer to an action by creditors of the wife for necessaries supplied to her pending the actions. In any view, there was no hardship to the pursuer or her creditors, because, in consequence of the decree of divorce, she had got a substantial provision out of which to meet her debts.

At advising—