Scottish Court of Session Decisions

This is a motion for interim aliment with the proof presently fixed for next June.

It has to be seen against a background of a comfortable lifestyle enjoyed by the parties prior to their separation in March of this year as exemplified by the undisputed facts that the parties resided in a large Georgian house with two children, privately educated, and with the parties running a Porsche and Range Rover respectively.

The pursuer continues to reside in the family house and the defender has acquired the occupancy of a comfortable four bedroom flat in the grounds of Gleneagles Hotel financed, I was told, by a partnership business operated by the defender and his father.

The pursuer has set out her financial requirements in a Schedule lodged as No.6/5 of Process. That Schedule includes certain items attributable to the two children of the marriage but, having regard to current legislation anent the Child Support Agency, Mrs Scott in the end accepted that these items should be ignored. Disregarding these items the total comes to some £2,650 per month, but Mrs Scott was, in my opinion, well founded in seeking to add as additional items the monthly mortgage payments on the family home of £201 and the relative council tax of £138 per month (both at present paid by the defender). In the result the pursuer's total outgoings, in terms of the amended Schedule, come out at a figure of around £3,000. Mrs Scott maintained that that figure reflected "the bare bones" of the pursuer's requirements and that, having regard to what she termed the "luxurious lifestyle" of the parties, as also certain indebtedness run up by the pursuer in recent months, there was scope for an even higher figure for outgoings to be attributed to her. For present purposes, however, I regard the broad figure of £3,000 as the appropriate figure on which to proceed. In that connection, I was unimpressed by Mrs Smith's attacks on items 3, 5, 6, 8, 9, 12, 14, 16, 17, 21 and 25 of the Schedule in question. On the other hand, item 13 is, I think, extravagant and should be deleted and I am prepared to modify items 17, 18 and 19 by £50, items 20 and 23 by £30, item 22 by £20 and item 26 by £20, making a total deduction of, in all, £200.

The pursuer's own income was agreed as being around £730 per month and, taking account of the deduction of £200 per month to which I have just referred, the result is that, depending on the defender's resources, the appropriate figure for interim aliment seems to me to be a figure of £2,000 per month.

Turning then to the defender's resources, Mrs Smith invited me, in the first instance, to ignore the partnership between the defender and his father. In light of what I was told anent the financing of the defender's present residence, I am prepared to do that. Secondly, Mrs Smith invited me to ignore the fact that, according to No.7/13 of Process, another nursing home business, in which the defender and his father were shareholders, showed a profit in 1997 of £50,805. This was on the basis that the defender was a minority shareholder with only 44% of the shares and that, according to Mrs Smith, no profits had in recent years been distributed. According to Mrs Smith there was an urgent need for expenditure in the nursing home of around £170,000. With some hesitation, and for present purposes only, I am prepared to accept Mrs Smith's submissions on this matter also.

However, that leaves for consideration the defender's main business interest which comprises a 78% shareholding in an enterprise known as "Centreglobe" which operates three night-clubs in Perth. No recent audited accounts are available but Mrs Smith quite properly advised me that in the most recent complete financial year (1997) the profit of the business was £190,000. The business is clearly a substantial one and it is not without significance that, according to Mrs Smith, it recently purchased, for corporate entertainment purposes, a power boat in Majorca at a net cost of £33,000 (see 11/5 of Process).

Against that background I regard as quite simply unrealistic Mrs Smith's submission that, for present purposes, I should take as the starting point for the defender's current resources, the salary at present being drawn by him from this business which, according to No.11/4 of Process, amounts to £2,083 per month gross and £1,041 per month net. Mrs Smith was, however, prepared to concede that account might also be taken of an overdraft facility arranged by the defender, of which there was an undrawn portion of £6,000, and of the general consideration that the defender could obviously, if so advised, take some further money out of the business of "Centreglobe".

It is, of course, impossible, in dealing with a motion of this sort, - the hearing of which, incidentally, has lasted more than four and a half hours, - to assess every detail of the parties' respective finances. In my opinion, however, it is clear beyond peradventure that the defender is a man of substance who, if he wished to do so, could so order his financial affairs as to put himself in a position to pay, by way of interim aliment, the sum of £2,000 per month to which I have already referred. In saying that I bear in mind, of course, that he is paying school fees for the two children of the marriage totalling £12,000 per annum and that he may shortly be assessed for further payments for behoof the children by the Child Support Agency.

In the final result, and on the basis which I have thought right to set out in the foregoing opinion, I shall grant decree for payment by the defender of interim aliment at the rate of £2,000 per month.