Scottish Court of Session Decisions

Lord President (Clyde)—This is a reclaiming note in an action of separation by a wife against the husband in which the Lord Ordinary, applying the provisions of section 4 of the Married Women's Property (Scotland) Act 1920, has made an award of interim aliment in favour of the husband.

The first question to be considered is whether this undoubted novelty in the practice of the consistorial Court is covered by the provisions of section 4. According to that section—given certain conditions which the section defines—the wife is brought under obligation to provide the husband out of her separate estate with such maintenance as he would in similar circumstances be bound to provide for her. It is clear that before the obligation can be made operative in any shape, the conditions which are precedent to the obligation must be established. And if this were a question not of an allowance of interim aliment but of a decerniture for future aliment in the final sense, there is no doubt that the conditions which the section prescribes would have to be established by evidence in the ordinary way. But the question of allowing interim aliment constantly arises in the course of proceedings such as these—usually at a stage of the case anterior to any allowance of proof—and the evidence upon which the Court has to proceed in awarding interim aliment is therefore different in quality from that which the Court would require if it were asked to pronounce a final decree. The evidence required to warrant an interim allowance of aliment in a consistorial cause has been described as a semiplena probatio, and consists of such materials, submitted to the Court, as present a prima facie case. Prior to the Act of 1920 the question of allowing interim aliment did not arise except as the consequence of a claim by the wife. The result of the Act is that it may now equally arise in consequence of a claim by the husband. There is nothing in the section to exclude its application to interim aliment; and I see no reason why the Court, in determining whether the conditions of her liability are fulfilled, should not proceed (in a case of interim aliment) on the same class of evidence as that hither to relied on in enforcing the husband's obligation in a similar case. It is a mistake, I think, to say that the obligation to provide interim aliment in a consistorial case is an obligation created by the decree. On the contrary, the decree would have neither validity nor justification if it were not that a legal obligation underlay it. What is true is that the decree for interim aliment is an act of regulative administration (in circumstances where the parties' true rights are in suspense) of an underlying and permanent legal obligation. I think, therefore, there is no reason why section 4 should not apply.

The second question is whether the Lord Ordinary had before him sufficient evidence in support of a prima facie case to justify him in holding the conditions required by section 4 to be fulfilled. The first of these is that the husband is unable to maintain himself. There was before the Lord Ordinary material, both in the form of averment and admission, bearing upon that question, and he determined that for the purposes of his interim decree the evidence was sufficient to show that the husband was unable to maintain himself. 1 see no ground for interfering with the Lord Ordinary's decision upon that point. The next is that the wife must have a separate estate, or a separate income, more than is reasonably sufficient for her own maintenance. Again, the record and the admissions of parties contain ample material upon which to form a prima facie judgment upon the facts with regard to that matter, and I do not see any ground for interfering with the manner in which the Lord Ordinary exercised his discretion. I think, therefore, that the reclaiming note should be refused.

Lord Skerrington—I am unable to adopt the very narrow and technical view of the meaning of section 4 of the Act of 1920 which the reclaimer's counsel asked us to accept. That construction, so far from assimilating the legal position of an indigent husband to that of an indigent wife in the matter of aliment, would create an important difference between the two cases, and the Court would have no jurisdiction to grant a decree for aliment in pursuance of section 4 until all the material facts had been established by evidence. I agree with your Lordship that it was competent for the Lord Ordinary to pronounce decree for interim aliment, and that no reason has been stated for holding that he exercised his jurisdiction improperly.

Lord Cullen—I think that the terms of section 4 of the Act of 1920 necessarily engender a discretionary power in the Court to deal with questions of interim aliment by orders such as that which the Lord Ordinary has pronounced here. I think the Lord Ordinary had before him sufficient materials for the exercise of a judicial discretion on the subject, and I see no good ground for interfering with the way in which he has exercised his discretion.

Lord Sands—I agree. In certain circumstances a wife is entitled to aliment from her husband. In regulating matters of

Page: 555↓