HUSBAND IMPECUNIOUS-NULLITY 103 pay. He has no income, and has no property. Court refused to order aliment pendente lite.1 Ill.-Husband got for his work his board and lodging and 4s. a week. Court refused to order aliment pendente lite.2 Ill.-Husband, a baker with income of £60 a year. He had given his wife £70 at the commencement of the suit, in lieu of a sum he had received with her at marriage. Held she ought not to receive aliment until this fund was expended.3 In Declarator of Marriage. The Court will not grant interim aliment where the alleged husband appears and denies the marriage. But where a woman after the death of her alleged husband obtained decree of declarator in the Outer House, the Court made an order for interim aliment against his representative pending a reclaiming note.5 6 In Declarator of Nullity.-If she is pursuer, she can claim aliment if she had grounds for relying on the validity of the marriage. If she is defender, the man admits by the fact of raising the action that she has a prima facie title to the name of his wife, even where he charges her with having fraudulently procured the marriage. Hence in most cases she will get interim aliment." Where the ground of nullity averred is bigamy, Mr Mackay suggests that if interim aliment is awarded, the husband should be entitled, after final decree in his favour, to sue for repetition, or perhaps caution to repeat should be required before payment of aliment.8 In a case where the man's action was for nullity, and the woman admitted in pleading that the marriage in question was contracted irregularly in Scotland, and when neither party had resided therein more than three days, this was held a virtual admission of nullity, and interim aliment was refused.9 What is prima facie proof of marriage is always a question of circumstances. In one case, where the man had given the woman a writing in these terms, "I hereby acknowledge Anna Maria Browne, commonly known by the name of Mrs Mills, to be my lawful wedded wife," it was held by a majority of the whole Court that there was no prima facie case. But the circumstances were very special, and some of the woman's own 1 Fletcher v. F., 1862, 2 S. & T. 434. 2 Capstick v. C., 1864, 33 L.J. Mat. 105; see also Beavan v. B., 1863, 2 S. & T. 652; Brown v. B., 1863, 3 S. & T. 217. 3 Coombs v. C., 1866, L.R. 1 P. & D. 218. 4 Petrie v. P., 1910 S.C. 136; Sassen v. Campbell, 1826, 2 W. & S. 309; Browne v. Burns, 1843, 5 D. 1288; Fleming v. Corbet, 1858, 21 D. 179. 5 Petrie v. P., supra. 6 S. v. B., 1884, 9 P.D. 80; A. D. v. W. D. (O.H.), 1909, 1 S.L.T. 342; Fr. i. 153, 154. Ballantyne v. B., 1866, 4 M. 494. (The Lord President's doubt arises from the specialty of this case, the ground of declarator being that the woman had been guilty of bigamy.) Same rule in England, Portsmouth v. P., 1826, 3 Add. 63. 8 Mackay, Practice, ii. 561. 9 Blackmore v. Mills, 1868, 18 LT. 586. averments were regarded as lending support to the defence that the writing was granted without a true matrimonial purpose. And the woman never had even ostensibly the status of wife, or avowedly cohabited with the man.1 In a less suspicious case such an acknowledgment would probably have been sufficient. It would generally be enough to produce a certificate of marriage. In such a question the Court will be much less inclined to award interim aliment where the woman has not been enjoying the status of wife. Amount of Interim Aliment. This is entirely a matter for the discretion of the Court. As a rule, considerably less will be given than would be fixed as a suitable sum for permanent aliment after separation. In England the rule is to give one-fifth of the joint income of the spouses, unless the wife's own income is sufficient. As much as £1000 a year was decreed as interim aliment when it appeared that the husband's income was £8000.4 No such absolute rule has been recognised in our Courts, and it is seldom that more than a decent maintenance is given by way of interim aliment. 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.5 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.6 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.7 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.8 II. Permanent Aliment.-A husband is bound to support his wife after decree of judicial separation, unless she is otherwise adequately 1 Browne v. Burns, 1843, 5 D. 1288; Fleming v. Corbet, 1858, 21 D. 179. 2 M'Leod v. Telfer, 1820, Hume, 10. 3 Thompson v. T., 1867, L.R. 1 P. & D. 553. 4 Edwards v. E., 1868, 17 L.T. 584. 5 Bremner v. B., 1863, 3 S. & T. 249. 6 Hakewill v. H., 1860, 30 L.J. Mat. 254. Hoey v. H., 1883, 11 R. 25. 8 Powell v. P., 1873, L. R. 3 P. & D. 55, and 1874, p. 186; see also Weber v. W., 1858, 1 S. & T. 219; contra, Donald v. D., 1862, 24 D. 499. provided for, and this holds good even when the separation has been obtained on the ground of her cruelty 1 or adultery, for in spite of the decree she still retains the status of his wife, and so long as she retains that status he is bound to support her. After decree of divorce against her the husband's liability is ended. And if she gets decree against him, her claim is no longer for aliment but for her provision legal or conventional, as if he were dead. But if she maintains the children of the marriage the wife can claim aliment for their maintenance and education after the divorce. For a husband divorced by his wife remains liable for the whole aliment of the children of the marriage.4 3 An order for aliment made by the Court under the powers given by the Conjugal Rights Act, 1861, section 6, falls as regards each child when. it attains minority.5 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 had during cohabitation, for that would be to hold out an inducement to separation. And as during cohabitation a wife follows the 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." There is no fixed proportion of the husband's income which the Court will allow. Each case will be determined on its own circumstances. In one case a wife who had no other means of support was allowed onefourth of her husband's net income." There does not appear to be any reported case in which more than one-third of the husband's income has been allowed for the aliment of the wife alone. 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 Ill.-Husband's income is £400 a year. Wife has custody of the three children. Court gave her £160 £100 for herself, and £20 for each of the children." 1 Nisbet v. N., 1896 (O.H.), 4 S.L.T. 158. * Fr. i. 854; Stewart v. S., 1872, 10 M. 472.' husband's income. Dixon on Divorce, 220 seq.; Gwynne Hall on Divorce, 92; Sidney v. S., 1865, 4 S. & T. 178, at 3 Dunn v. Matthews, 1842, 4 D. 454; p. 179; see Wotherspoon v. W., 1869, Ketchen v. K., 1871, 9 M. 690. 4 Foxwell v. Robertson, 1900, 2 F. 932. 5 Watson v. W., 1895, 23 R. 219. Scott v. S., 1894, 21 R. 853. In referring to the English cases it is important to bear in mind that the rule there is to give one-third of the 8 M. 81; Crombie v. C., 1868, 6 M. 8 Thomson v. T., 1890, 17 R. 1091; Wotherspoon v. W., supra, 9 Whieldon v. W., 1861, 2 S. & T. 388. Ill.-Husband's income £250. He supports two children. £75 given.1 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. 2 It may be a ground for giving less that a husband's position requires him to live in a certain style.3 Ill.-Husband, a baronet, is a captain serving in India. His pay is £480. £120 given. (In England £160 would have been the usual proportion.) The rank in life of the parties is always an element for consideration.5 But the wife takes the rank of the husband, 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 £640. The spouses had lived on about £150. £140 given to the wife." 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.8 Ill.-Husband, a publican, made a net profit of £150 a year. 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 asked for £78 a year. The Court fixed 17s. 6d. a week.9 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. Ill.-Husband had £1100 a year. Wife had £150 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.10 But aliment is not given for the wife to save out of. It is essentially for present maintenance.11 1 Harris v. H., 1828, 1 Hagg. E.C. 351. 2 Grafton v. G., 1872, 27 L.T. (N.S.) 768; also Hill v. H., 1864, 33 L.J. Mat. 104. M'Millan v. M., 1871, 9 M. 1067. 8 Scott v. S., 1894, 21 R. 853; but see Stewart v. S., 1887, 15 R. 113. • Thomson v. T., supra. 10 Sidney v. S., 1865, 4 S. & T. 178. 3 Hawkes v. H., 1828, 1 Hagg. E.C. (This was after dissolution, but the rules 526. 4 Louis v. L., 1866, L.R. 1 P. & D. 230. 5 Graham v. G., 1878, 5 R. 1093; Thomson v. T., 1890, 17 R. 1091. as to amount of aliment are the same. It is much to be regretted that our Courts have not the power, possessed by those of England, to order permanent aliment after divorce as well as separa Butler v. B., 1842, Millward's Ir. tion.) Rep. 629. 11 Thomson, supra. 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 a year 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.1 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 means. Aliment restricted to £150.8 (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 consented to £250 he was sanguine about an increase in his business.) Ill. In an action of divorce a wife was awarded the custody of the children of the marriage, four boys, and aliment for each at the rate of £40 a year. The husband's income three years later had increased from £700 to £1000 a year. In respect of this fact and the increasing cost of education, aliment was increased to £55 a year for each child." In an action of separation and aliment the sum fixed by an irrevocable contract of separation may be revised, on proof of change of circumstances, in the same manner as if it had been fixed by decree of Court, 10 unless the change of circumstances was contemplated when the contract was made.11 |