Scottish Court of Session Decisions

[1] The parties were married on 31 January 1981. They were divorced on 8 April 1982. In terms of the decree the defender, Mr Ireland, was found liable to make payment to the pursuer, now known as Mrs Douglas, of aliment for each of two children at the rate of £12 per week, and of a periodical allowance of £20 per week. The present dispute arises from a minute presented by Mr Ireland seeking variation of the periodical allowance to nil.

[2] The parties had known each other for about three months prior to marriage. They separated at the latest in about May 1981. Following the divorce they resumed cohabitation in about August or September 1982. They lived together for less than a year and separated again.

[3] Mrs Douglas had a daughter by a previous relationship, Lindsay. The parties' daughter, Susan, was born on 10 August 1981. The award of aliment was made in respect of these girls.

[4] Mrs Douglas had been partially disabled long before the marriage, and remains so. She is not employed, and has not been in employment at any material time. She may be able to enter University in September 2001 and could at some future date take up employment following successful completion of her course. There is no likelihood that she might otherwise earn an income from employment in the foreseeable future. Prior to the marriage, during it, and subsequently she depended on state benefits. At the time of the divorce she received invalidity benefit and family allowance. At present she receives in respect of each four-week period incapacity benefit of £306, and disability living allowance of £160. The rental payments for her car, at a rate of £132 per four-week month, are provided for her. She receives housing benefit. As at 24 July 2000, her rent was £340 for four weeks. Benefit was £260, and she was liable for the balance of £80. The benefit has since been reduced to £225.30 for a four-week period because Lindsay and her child have returned to live with her and Lindsay receives income support. Mrs Douglas has fuel costs in respect of oil, electricity, coal and calor gas which amount, on her estimate, to about £114.24 per four-week period.

[5] In my view the reduction in housing benefit due to the return of Lindsay can be taken to be the measure of the amount which should be contributed by Lindsay from the state benefits she receives to the household. As a single parent Lindsay has appropriate state benefits for the support of her child and herself. Mrs Douglas therefor has income of £466 and outlays of about £196, leaving £270 per four-week period for ordinary living expenses. Mrs Douglas did not provide any estimate of her ordinary household expenditure, motor car expenses, telephone account or insurance. But it was clear that her evidence that she had some debt in respect of rent was reliable. On no account could she be held to have a surplus of income over expenditure.

[6] Mr Ireland is a carpenter. At the date of the divorce he had a take-home pay of £340 per month with a possibility of occasional bonus payments. He was then employed by Fife Council. At present carpenters in the employment of that authority earn £1160 per month before deductions, and inclusive of bonus. Mr Ireland has for some years lived and worked in Jersey. Until recently he was in employment. In 1998 he lost his job, but began to carry on business, at first in partnership, and latterly as a sole trader, in providing joinery services in the same areas as he had been employed. He did not produce accounts, not having had a complete accounting period to date. But I considered that his evidence about his earnings was reliable at approximately £1635 per month. He operates largely as a jobbing carpenter on building sites for an hourly rate, and only occasionally carries out work on any other basis. His earnings compare favourably with his earnings potential in Fife and are similar to his assessed earnings returned to the Jersey tax authorities for the year to 31 December 1998.

[7] Mr Ireland re-married on 5 September 1987. There are three children of that marriage, Christina born 8 June 1988; Chloe born 31 January 1992; and Amanda born 7 December 1994. The children are at school and are cared for by Mrs Ireland. Mrs Ireland is not currently in employment, but has worked in the recent past.

[8] There was produced a schedule of expenditure incurred by Mr Ireland. The amounts were vouched and were not contentious. If one were to attempt to obtain a fair basis for comparison with Mrs Douglas's position, it would be necessary to exclude from the total those elements which are properly described as the ordinary expenses of living, or which may be regarded as to some degree elective. But the exercise would not be warranted by any reasonably predictable result and would savour of spurious arithmetical accuracy in what of necessity can be no more than a broad estimate. Mr Ireland has in fact got into debt. He has to support a wife and three children. His ordinary expenditure leaves a small surplus to meet occasional expenditure on medical and veterinary bills and clothing. The family's only indulgence spoken to in evidence was a week's canvas holiday in France.

[9] On any sensible view of the evidence, each of the parties lives on a bare subsistence basis. Neither has surplus income after meeting the ordinary expenses of living. In Mr Douglas's case that is no doubt due to a considerable extent to his having remarried and had a new family. That is in itself a material change in circumstances from the position at divorce. But in any event, the overall picture is of a man who had a material revenue surplus at the date of divorce from which to make payment of a periodical allowance and who now has no such surplus. On the other hand, Mrs Douglas's benefits have increased in accordance with the appropriate national scales throughout the whole period.

[10] Mrs Douglas did not claim payment of periodical allowance between the beginning of 1985 and January 1999. The circumstances in which that came about gave rise to one of the main elements of controversy in the case. But the fact is that Mrs Douglas made no attempt to obtain support from Mr Ireland for herself over that period. The reason she came to intimate a claim in January 1999 is not controversial. Mr Ireland had stopped making payment to Susan. Mrs Douglas thought she should try to obtain a broadly equivalent sum for herself by attempting to resurrect the periodical allowance obligation.

[11] In my opinion the order made on divorce should now be varied to nil in the light of the altered circumstances already described if it is still extant. The liability would place an unacceptable burden on Mr Ireland and his family. He cannot afford it, and Mrs Douglas has lived without the payment for many years, whatever the reason for the situation that has existed since 1985.

[12] The parties were further in dispute whether the 1982 order had been varied by agreement. Mr Ireland averred that he had not paid periodical allowance since 1985 by agreement between the parties. Under the same agreement he had not paid aliment since then in respect of Lindsay. He further avers that:

Mrs Douglas for her part avers that there are substantial arrears of periodical allowance due to her.

[13] Since there was considerable discussion of the issue in evidence I shall in the first place deal with the facts. There was historical material which provided a basis for the most general of findings only. Mrs Douglas contended that Mr Ireland had never kept up regular payments of sums due under the decree. He maintained that he fell into arrears when he could not afford to pay, but caught up when he was in employment, making many of the payments in cash by registered post. He contended that he had been asked to resume cohabitation in the autumn of 1982 because Mrs Douglas was in debt, and needed his wages to extricate herself from that position.

[14] Whatever the general position, it was clear that following the second separation in about the late summer or autumn of 1983, Mr Ireland went to ground in Jersey and was out of contact with Mrs Douglas for a period. Mrs Douglas discovered his whereabouts from a family contact, and instructed Mrs McLaughlin of Messrs Gorrie & Davidson, solicitors, to pursue her claims for payment. A claim was intimated to Mr Ireland at his address in Jersey. Mr Ireland instructed Mr Messervey, of Messrs Le Masurier, Gifford & Pock in Jersey to represent him. It was clear that there were discussions between the solicitors. It was clear that an agreement was reached between them. There was no dispute in evidence that at least it was agreed that the liability to pay aliment in respect of Lindsay should cease.

[15] The reasons for this aspect of the agreement may have been different on each side. Mr Ireland thought that the reason for the change in respect of Lindsay was that Mrs McLaughlin had discovered for the first time that he was not Lindsay's father. The averments in the divorce summons had been that the paternity of Lindsay had not been established. It was plain from Mrs Douglas's evidence before me that if that were true at the date of the divorce it was certainly untrue at 1985. Her evidence was that at some time prior to the negotiations between the solicitors Lindsay's father had been killed in a hill-walking accident and his parents had said that they would support Lindsay. I found Mrs Douglas's evidence on this matter wholly unsatisfactory. It appeared that she must have been claiming aliment from Mr Ireland and from Lindsay's father and grandparents at the same time. Discovery by her solicitor that the father of Lindsay was known, and that his parents were supportive was more consistent with Mr Ireland's evidence that there was a major change of attitude when it became clear that he was not the father.

[16] There was no contemporary record in correspondence of the agreement reached. Both firms of solicitors involved in the negotiations had destroyed or lost their files. Neither solicitor was led in evidence. But the inevitable inference from the treatment of aliment for Lindsay was that there had been an extra-judicial agreement to vary the order of the court in the 1982 divorce decree. That agreement was never recorded in formal terms of a document signed by the parties. It was never brought to the attention of the court. But the only issue between the parties was as to the scope of that agreement, and in particular whether it related to periodical allowance.

[17] I found Mr Ireland's evidence to be credible and reliable. The circumstantial detail was persuasive, and I did not form the impression that Mr Ireland was likely to have contrived it. I did not think it likely that he could have done so. He did not know that the identity of Lindsay's father had come to light. He had heard of the outcome of the negotiations in a letter from Mr Messervey which had announced the "good news" that his future liability would be limited to making payment of aliment in respect of Susan. Thereafter he made payments under that arrangement, until he discovered in October 1998 that Susan had dropped out of higher education. Susan was then over seventeen years of age, and the payments had therefor continued beyond the final date of the obligation in the decree.

[18] The explanation for the continuing payment was disclosed in correspondence between the parties' present solicitors. In January 1996 Mrs Douglas's solicitors raised an issue of arrears of aliment. Mr Ireland had again fallen behind in payment. There was a dispute as to the amount of the arrears which is irrelevant for present purposes. Mr Ireland offered to pay off the arrears by instalments, and to continue to pay £26.50 per week as aliment for Susan. That offer was accepted by letter dated 30 January 1996. On 22 November 1997, Mrs Douglas's Jersey solicitors intimated that Susan had a place at Aberdeen, and a bursary, and asked for aliment at the rate of £65 per month to be made direct to Susan. In that letter there was a threat that, failing agreement, proceedings would be raised to vary the order made on divorce, notwithstanding that Susan was then sixteen, "or to seek enforcement of the said Order as regards maintenance for our client". Aliment at the rate sought was agreed. Mrs Douglas breached the agreement by failing to inform Mr Ireland that Susan had dropped out of her course. On 18 January 1999, a demand was made for payment of periodical allowance with effect from 1 January 1999, with a threat that if liability was not conceded "my client will seek to recover arrears to the fullest extent permitted by law".

[19] On 21 January 1999, Mr Ireland's solicitors replied:

Mr Ireland accepted that he was the source of that information, and that it was not based on documents then in his hands. It has to be observed that he did not then have access to the solicitor who had represented him at the time of the negotiations. Advocate Messervy had by the beginning of 1999 become a consultant with the firm of Ogier & Le Masurier, Mrs Douglas's solicitors. The response from Ogier & Le Masurier to Mr Ireland's solicitors' letter appears to have been an invitation to produce formal written proof of the agreement. In my view it is significant in weighing credibility that the position adopted by Mr Ireland in evidence was anticipated in his immediate response to the demand made in January 1999.

[20] Mrs Douglas's evidence was less than satisfactory. When asked whether there had been an agreement that she would not seek payment of periodical allowance, she said that she had no recollection of that: the only agreement she had made was that there would be no payment for Lindsay. As far as she was concerned she had never given her solicitors instructions to agree not to recover. When asked to explain her failure to seek payment, she said that she did not pursue it because she would have had to go through Legal Aid. Further Mr Ireland had said that he could not afford payment. In cross examination she agreed that whenever there had been arrears of aliment for Susan she had sought legal advice. She had not wanted payment of periodical allowance so long as Mr Ireland paid for Susan. She said that she had made direct demands to Mr Ireland for payment of periodical allowance in 1995. But she had trusted Mr Ireland when he had said that he could not afford to pay. If there had been an agreement her lawyer was at fault. She had decided that she would wait until aliment for Susan had stopped, and then try to get the money Mr Ireland had been paying for Susan. I formed the impression that Mrs Douglas had chosen to ignore the arrangements of 1985, and simply to raise an opportunistic claim for payment after Mr Ireland had ceased making payment of aliment for Susan. I found her evidence about the negotiations and agreement of 1985 incredible in general. The terms of the correspondence, and her pursuit of Mr Ireland were inconsistent with any tenderness of heart towards him which might have explained an attitude of self-denial in the face of his financial difficulties.

[21] I incline therefore to the view that it was proved that Mrs Douglas had agreed that she would not receive payment of periodical allowance after the beginning of 1985. But that brings one to the question whether, and in what way, one can reflect such a view in the present proceedings. I agree with the opinion of Lord Osborne in Wilson v Wilson 1992 S.L.T. that the existence of such an agreement does not allow the court to backdate a variation in an order for periodical allowance. A declaratory action would appear to be required if Mr Ireland were to attempt to have the contractual position recognised. That would be directed towards proof that the obligation had been extinguished. There is a logical difficulty in exercising a jurisdiction to vary an order prospectively on the basis of a contractual discharge which, if effective at all, must have extinguished the obligation reflected in the order many years earlier. The approach adopted in the present case, of presenting the case as one of personal bar, is not relevant to the application for variation. The averments are directed towards a defence of a claim for payment of arrears. Although it is asserted in the answers that there are arrears, there is no conclusion for payment of the arrears.

[22] Counsel did not suggest that the minute should be refused as unnecessary, nor otherwise suggest that I could do other than vary the 1982 order with prospective effect. In the circumstances it is, in my opinion, inappropriate to make any comment on the effect the findings in fact might have in respect of past periods. I shall vary the order for payment of periodical allowance to nil.