ALIMENT VARIED-PERMANENT ALIMENT. 109 Aliment refused or less given than usual on ground of Wife's conduct.-When the husband averred that the wife had taken from his house furniture of the value of £800 or £1000, the Court refused to order aliment.1 And where a wife had instituted a number of vexatious actions against her husband, the Court took this into account and gave her a meagre aliment.2 Amount of interim Aliment may be varied on proof of change of circumstances.-Where interim aliment had been. given at the rate of £5 a-month, this was afterwards increased to £8 a-month on account of the additional expense to which the wife had been put by her confinement.3 But in England it has been laid down that the Court will be slow to increase interim aliment—e.g., a husband and wife separated with the agreement that he was to give her £40 a-year. His income was then £210. Subsequently he raised an action of divorce against her on the ground of adultery. She asked for increased aliment, and it was admitted that the husband's income was now not less than £1700. The Court refused to give more than the £40 agreed upon.* 4 II. Permanent Aliment.-A husband is bound to support his wife after decree of judicial separation, unless she is otherwise adequately provided for, and this holds good even when the separation has been obtained on the ground of her cruelty or adultery, for in spite of the decree she still retains the status of his wife. Amount of Aliment granted. This is a matter of discretion, and many circumstances may enter into consideration. The general rule will be that the wife is entitled to be supported decently in the position which she occupies in virtue of her husband's position. It would not be right that she should be reduced to a bare pittance, while her husband is living in affluence. On the other hand, it is not desirable to put her in a better position as regards money than she was during cohabitation, for that would be to hold out an inducement to separation. And as during cohabitation a wife follows the 1 Bremner v. B.,1863, 3 S. and T. 249. 2 Hakewill v. H., 1860, 30 L.J., Mat. 254. 3 Hoey v. H., 1883, 11 R. 25. 4 Powell v. P., 1873, L.R., 3 P. and D. 55, and 1874, p. 186; see also Weber v. W., 1858, 1 S. and T. 219; contra, Donald v. D., 1862, 24 D. 499. varying fortunes of her husband, so the law does not guarantee to a wife living apart that she shall be secured against the calamities which may befall him. She is still his wife, and has taken him "for better, for worse." The amount will be a proportion of his income.1 The Court has adopted as a guide the rule that, apart from special circumstances, a wife who has no other means of support, will be allowed one-fourth of her husband's net income.2 If she is to support children of the marriage more may be given to her. On the other hand, if they are to be maintained by the husband and his means are small, this may be a reason for allowing a smaller sum to the wife.3 Wife has custody Ill.-Husband's income is £400 a-year. of the three children. Court gave her £160. £100 for herself, and £20 for each of the children.1 Ill.-Husband's income £250. He supports two children. £75 given.5 It is not a ground for giving smaller aliment that a husband has to support children of a former marriage. But the Court might take this into consideration if he had a large family of them and his means were small. It may be a ground for giving less that a husband's position. requires him to live in a certain style." Ill.-Husband, a baronet, is a captain serving in India. His pay is £480. 8 £120 given. (In England £160 would have been the usual proportion.) The rank in life of the parties is always an element for consideration.9 But the wife takes the rank of the husband, 1 In referring to the English cases it is important to bear in mind that the rule there is to give one-third of the husband's income. Oakley's "Divorce Practice," p. 137; Sidney v. S., 1865, 4 S. and T., at p. 179; see Wotherspoon v. W., 1869, 8 M. 81; Crombie v. C., 1868, 6 M. 776; M'Millan v. M'M., 1871, 9 M. 1067; Graham v. G., 1878, 5 R. 1093. 2 Lang v. L., 1868, 7 M. 24. 3 Thompson v. T., 1890, 17 R. 1091; Wotherspoon v. W., 1869, 8 Whieldon v. W., 1861, 2 S. and T. 388. 5 Harris v. H., 1828, 1 Hagg. E.C. 351. 6 Grafton v. G., 1872, 27 L.T. (N.S.) 768; also Hill v. H., 1864, 33 L.J. (Mat.) 104. 7 Hawkes v. H., 1828, 1 Hagg. E.C. 526. 8 Lonis v. L., 1866, 1 L.R., P. and D. 230. 9 Graham v. G., 1878, 5 R. 1093; Thomson v. T., 1890, 17 R. 1091. SUM FIXED BY SPOUSES. 111 and therefore it is submitted, in spite of the authority of an Irish case, that the fact of the wife being of humble origin is no reason for giving her less aliment. Nor is the fact, that the husband has chosen to live on much less than his income, during the cohabitation, a ground for awarding a less sum to the wife. Ill.-Husband, a pawnbroker, had an income of about The spouses had lived on about £150. £140 given £640. to the wife.2 Where Spouses have fixed on a sum themselves.-The Court will readily be guided in fixing aliment by the fact that in a contract of voluntary separation or otherwise the spouses had themselves determined what sum they considered reasonable.3 Ill.—Husband, a publican, makes a net profit of £150 ayear. By a deed of separation the wife had agreed to take 17s. 6d. a-week as aliment. On this she had maintained herself and her mother for some years. She now asked for £78 a-year. Court fixed 17s. 6d. a-week.1 It follows from the general rule that if the husband be in good circumstances the wife is entitled to aliment although she may be in possession of separate property sufficient for a bare maintenance. For she ought to be able to live in conformity with her husband's position. Wife has £150 a-year Ill.-Husband has £1100 a-year. of her own. This was held insufficient for her, and the Court ordered the husband to pay her aliment at the rate of £245 a-year. But aliment is not given for the wife to save out of. It is essentially for present maintenance." Amount of Aliment. The following illustrations may be useful on the question of amount : Ill.-Husband has a clear income from heritage of £243. Wife has £30 of her own. He supports one daughter of the marriage. £55 a-year given.1 Ill.-Husband has income of £100 as master of a ship. £30 given.2 Ill-Husband is a fruiterer who keeps no books. Wife said the profits were about £300. An accountant judged from the turnover that husband's net income would be £109. The Lord Ordinary struck it at £200, but gave the wife £65, more than a quarter. This was adhered to.3 Ill. A husband who had deserted his wife had £30 ayear of his own. His mother allowed him £50 a-year. He had a contingent right to the life-rent of a sum of £2500. £20 given.* Ill.—Husband earns wages at the rate of £6 a-month. 6s. a-week given.5 The Amount originally fixed may be varied on proof of change of circumstances. Power is sometimes expressly reserved to the parties in the decree to apply for variation of aliment on the ground of material change of circumstances." But this is unnecessary, as it is always implied. Ill.-Wife obtains decree of separation and aliment. The aliment is fixed at £40, the husband's income being £115. After the separation she gives birth to a legitimate child. She petitions for increase of aliment, and is allowed £7 a-year in addition. Ill. By joint minute in an action of separation husband agreed to pay wife £250 a-year as aliment for herself and two children. Three years later he petitioned to have the amount restricted. The Court remitted to an accountant, and found the husband's income was £430, and that the wife had no 8 Aliment restricted to £150. (It is a peculiarity of this case that it was not shown that his income had suffered any diminution. He explained that when he originally con means. 1 Wotherspoon v. W., 1869, 8 M. 81. 2 Williamson v. W., 1860, 22 D. 599. 3 Jameson v. J., 1886, 23 S.L.R. 4 Derby v. Syme, 1833, 11 S. 305. 5 Cowper v. C., 1860, 23 D. 68. 6 Symington v. S., 1874, R. 871. 7 Hay v. H., 1882, 9 R. 667. 8 Stewart v. S., 1887, 15 R. 113. DILIGENCE-SECURITY FOR ALIMENT. 113 sented to £250 he was sanguine about an increase in his business.) Diligence on the Dependence of an Action of Separation and Aliment. The general rule is, that in every action in which the payment of a sum of money is concluded for, it is competent to use diligence on the dependence of the action for the enforcement of the claim. But where, as in an action for aliment, the debt is a future one, diligence is incompetent unless the husband is vergens ad inopiam, in meditatione fuga, or is putting away his funds.1 In this case the proper practice is to proceed by bill setting out the special grounds for the diligence, to enable the defender to answer the allegation.2 Ill. On evidence that the husband was realising his estate with a view to leaving the country, inhibition used by the wife on the dependence of an action of separation and aliment was only recalled on caution for £4000 being found.3 There may be Circumstances in which a Husband may be required to find Security for the Payment of Aliment.Where a husband has only one source of income, such as, e.g., an annuity or a pension, the Court has in some cases ordered him to assign a portion of it in security of his wife's aliment. But when his income is derived from business, the wife is not, in the ordinary case, to be placed in the position of a secured creditor. She must still follow his fortunes.1 But in exceptional circumstances diligence used by a wife will not be loosed except on caution or consignation.5 Ill.-Wife obtained decree of separation and aliment at the rate of £25 a-year. Subsequently the husband was convicted of setting fire to his property to defraud an insurance company. He was a travelling hawker, and the wife averred she did not know where to find him when the aliment fell due. An 1 Symington v. S., 1875, 3 R. 205. 2 Ibid., p. 207. For otherwise, as pointed out by Lord President Inglis in Symington, the wife would in effect be converting her husband's debtor into her trustee without his consent, and could bring an annual action of 3 Burns v. B., 1879, 7 R. 355. |