Scottish Court of Session Decisions

[1] This is an application for an order refusing confirmation of a provisional order made a District Judge of the Family Justice Division of the Subordinate Courts of the Republic of Singapore ("the Singapore court"). The application is made under section 5(5) of the Maintenance Orders (Reciprocal Enforcement) Act 1972 ("the Act") and the relative procedural provisions contained in the Maintenance Orders (Reciprocal Enforcement) Act 1972 Rules 1974 (SI 1974 No. 929) ("the Rules").

[2] Section 2 of the Act provides that where the payer under a maintenance order made by a court in the United Kingdom is residing in a reciprocating country, the payee under the order may apply for the order to be sent to that country for enforcement. Section 5 applies inter alia to a maintenance order a certified copy of which has been sent to a reciprocating country in pursuance of section 2. Section 5(5) provides as follows:

Section 5(6) provides as follows:

[3] The prescribed officer of this court is the Deputy Principal Clerk of Session (Rule 3(1) of the Rules). Rule 6 provides as follows:

Rule 7 provides as follows:

[4] By interlocutor of this court dated 1 February 1979 the present respondent was divorced from the present applicant. At that stage no order for financial provision in favour of the applicant was made. By a further interlocutor dated 15 August 1979 the respondent was ordered to pay the applicant a periodical allowance of £40 per week. Somewhat unusually, the interlocutor did not specify the duration of the order, but the effect of section 5(5) of the Divorce (Scotland) Act 1976 was that (unless varied) it was payable until the re-marriage or death of the payee. By a further interlocutor dated 2 December 1981 the periodical allowance payable by the respondent to the applicant was increased to £75 per week, and on this occasion the interlocutor did specify that it was to be payable until the re-marriage or death of the applicant. By yet a further interlocutor dated 22 March 1984 the periodical allowance payable by the respondent to the applicant was further increased to £125 per week.

[5] It appears that each of the successive orders for payment of a periodical allowance contained in the interlocutors of 15 August 1979, 2 December 1981 and 22 March 1984 was sent to Singapore for enforcement. Singapore is a reciprocating country for the purposes of the Act. In the event, the order made by the Singapore court in respect of the interlocutor of 22 March 1984 was an order for payment of £100, rather than £125, per week (see the transcript of the hearing of 6 July 1984, No. 123 of process). The applicant contends that the Singapore court was not entitled to reduce the amount of the order in that way, but that issue is not properly before me in this application, and I express no opinion on it.

[6] On 23 September 1998 the respondent took out an originating summons in the Singapore court seeking rescission of the order of 15 August 1979 as varied by the orders of 2 December 1981 and 22 March 1984 (No. 125 of process). On 11 December 1998 the respondent was granted leave to withdraw that application. A subsequent application was heard by the Singapore court on 11 March 1999. The order made by the court on that date was amended and re-issued on 1 February 2000. It is not clear from the material before me in what respect it was amended or why it was re-issued almost a year after it was made. The amended and re-issued order ("the provisional order") was in inter alia the following terms:

[7] A certified copy of the provisional order and the other requisite documents were received by the Deputy Principal Clerk of Session at the beginning of March 2000. After some delay occasioned by a change in the present applicant's address, the Deputy Principal Clerk wrote to her in the manner required by Rule 6 on 12 April 2000. On 27 April 2000 she lodged the present application seeking refusal of the provisional order. Thereafter the present respondent submitted a letter dated 3 May 2000, which was treated as answers to the application in terms of Rule 7. The application was then placed before me for determination.

[8] For the purposes of determining the application I had before me the following material:

1. From the Singapore court:
1. the provisional order,
2. a transcript or summary of the proceedings at the hearing on 11 March 1999,
3. an affidavit of the respondent dated 1 February 1999,
4. a file of exhibits (JKC-1 to JKC-9) referred to in that affidavit, and
5. a further affidavit of the respondent dated 9 March 1999;
2. The applicant's application to this court lodged on 27 April 2000;
3. The respondent's answers (letter of 3 May 2000);
4. An affidavit of the applicant, No. 130 of process; and
5. A number of documentary productions lodged by the applicant, Nos. 123 to 133 of process.

[9] I have carefully considered all of the material listed in paragraph [8] above. In light of that material, I have come to the conclusion that I ought to refuse to confirm the provisional order.

[10] The basis of the respondent's application to the court in Singapore was inter alia that there had been a material change in his circumstances in respect that prior to his retirement on 30 June 1998 he was earning $16,000 per month, whereas after his retirement he worked only part-time and his earnings had been halved (to $7400 gross ($6950 net) per month) (see his affidavit of 1 February 1999, paragraphs 13 and 14). He did not, however, disclose the amount of his earnings at the time when the order was registered in 1984. The transcript of the hearing on 6 July 1984 (No. 123 of process) discloses that in 1983 he was earning $84,500 per annum (i.e. $7040 per month). Even taking into account the 12% increase which he said he expected in July 1984, his monthly gross earnings were then $7886. It therefore appears that the true position is that the respondent's present earnings are only very slightly below those which he was receiving in July 1984. His earnings rose, no doubt in stages, to about $192,000 per annum during the period from 1984 to 1998, but during that period the applicant was unaware of the increase and made no application for upward variation of the maintenance order. In considering whether there has been a material change in circumstances in respect of the respondent's earnings, it seems to me to be fair to compare his earnings now with his earnings at the time of the 1984 order, rather than with his earnings immediately before his retirement.

[11] The respondent submits that his pension fund is to be treated as capital, and therefore as an asset to which the applicant has no claim (see his answers (letter of 3 May 2000) item 2). That is no doubt correct, but it seems to me to be reasonable to infer that that capital fund yields an income. The respondent does not disclose the amount of that income. I conclude, however, that that income supplements his earned income. I therefore feel entitled to proceed on the basis that the earned income declared by the respondent in his affidavit is an understatement of his total available income.

[12] The other change of circumstance founded on by the respondent is his re-marriage in 1990. The applicant's evidence is that the respondent was in 1984 already living with the person whom he married in 1990. The respondent did not seek to rely on his re-marriage as a change in circumstance at the time when it took place. In that situation I do not consider that it is a circumstance that ought to weigh heavily in any reassessment of the amount of maintenance that he ought now to pay to the applicant.

[13] There is evidence before me, that was not available to the court in Singapore, about the applicant's health. The letter from her general medical practitioner (No. 129 of process) vouches that she suffers from:

1. generalised osteoarthritis, particularly of the spine, requiring anti-inflammatory and analgesic medication;
2. Meniere's disease;
3. irritable bowel syndrome;
4. hypertension;
5. acne rosacea, which requires her to protect her skin from sunlight; and
6. menopausal symptoms.

I am satisfied that in light of that evidence I should accept the applicant's evidence that she is unfit for employment. The applicant thus has no income other than the maintenance payments which she receives from the respondent. She is in receipt of council tax benefit of £12.82 per week (No. 131 of process) and housing benefit of £46.73 per week (No. 132 of process).

[14] A number of matters were put before me which I have not relied upon as ground for refusing to confirm the provisional order. I mention some of them in order to make it clear that they have not been regarded as ground for refusing confirmation of the provisional order. The applicant referred to the respondent's earnings from books and lectures. The respondent denies such earnings, and I accept his denial. In paragraph 14 of her affidavit the applicant refers to the respondent's inheritance of a 20% interest in a hotel in Scotland. That evidence is very general, and the respondent has not had an opportunity to respond to it. I therefore leave it out of account. The applicant in paragraph 16 of her affidavit refers to earnings of the respondent's present wife. Without more concrete detail, I do not consider it appropriate to take that into account.

[15] For the reasons set out in paragraphs [10] to [13] I am of opinion that it is fair and reasonable that the respondent should continue to maintain the applicant at the rate that has applied since 1984. I accordingly refuse to confirm the provisional order re-issued by the Singapore court on 1 February 2000.