Scottish Court of Session Decisions

On 31st May 1899 Mrs Maggie Davidson Angus, formerly Robertson, now Foxwell, wife of John Burford Foxwell, engineer, Southport, with his consent and concurrence as her curator and administrator-in-law, and Mr Foxwell for his own interest, raised an action against John Robertson, shepherd and horsebreaker, Sallochan, Ardgour, Argyleshire, for payment to the female pursuer of the sum of £15 yearly as aliment for John Hector M'Lean Robertson, the only child of the now dissolved marriage between the said pursuer and the defender, payable quarterly and in advance, beginning the first term's payment of the aliment as at 1st November 1890, for the three months following, and so forth quarterly thereafter so long as said child should be unable to earn his livelihood and should remain in the custody of the female pursuer, with interest at 5 per cent. on each quarterly payment of aliment from the time the same became due till payment.

The facts as averred by the pursuers, and in substance admitted by the defender, were as follows:—Mr and Mrs Foxwell were married on 29th April 1896. Prior to her marriage with Mr Foxwell, Mrs Foxwell was on 27th November 1888 married to the defender, and one child, namely,

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John Hector M'Lean Robertson, was born of the marriage on 1st October 1889.

On 1st November 1890 the female pursuer obtained in the Divorce Division of the High Court of Justice in England a decree nisi dissolving her marriage with the defender on account of the defender's adultery and cruelty. This decree was made absolute on 12th May 1891. It, inter alia, ordered that the child should remain in the custody of the female pursuer till further order of the Court, but it was directed that the child should not be removed out of the jurisdiction of the Court without its sanction. Since the dissolution of the marriage the defender had contributed nothing towards the aliment and education of the child, who had ever since remained in the custody of the female pursuer, by whom he had been exclusively alimented until the date of her second marriage. Thereafter he had lived in family with the pursuers.

The pursuers pleaded—“(1) The defender being legally bound to aliment the said child of his marriage with the female pursuer, and having entirely failed to implement said obligation since 1st November 1890, is bound to relieve the female pursuer of the whole cost of alimenting the said child since said date, and so long as it remains in her custody.”

The defender pleaded—“(6) The amount claimed is excessive, and in any case is due by the defender to the extent of one-half only.”

On 25th January 1900 the Lord Ordinary ( Kincairney) pronounced the following interlocutor:—“Finds that the defender is bound to relieve the pursuer of one-half of the cost of alimenting their child since 1st November 1890, and so long as he is unable to earn his livelihood, and shall be in the custody of and supported by the pursuer: Repels the pleas-in-law for the defender except the sixth: Sustains said sixth plea to the effect of finding that the claim of the pursuer is only for one-half of the aliment of the said child: Finds that no other question has been raised as to the amount of the aliment: Therefore decerns against the defender for payment to the pursuer of the sum of seven pounds ten shillings (£7, 10s.) per annum from said 1st November 1890, and so long as the said child is unable to earn his livelihood, and shall be in the custody of and supported by the pursuer.”

Note—“This is an action by the mother of a child born on 1st October 1889, against the father of the child, concluding for payment of aliment for the child at the rate of £15 per annum from 1st November 1890. The child is the legitimate child of the marriage between them; but the marriage was dissolved by decree pronounced in the High Court of England on 1st November 1890, by which judgment it was found that the present defender had been guilty of adultery coupled with cruelty towards the pursuer, and it was ordered that the child of the marriage (there was only one) should remain in the custody of the present pursuer until further order of the Court, and it was thereby directed that the child be not removed out of the jurisdiction of the Court without its sanction.

It has not been explained how it happened that the divorce was pronounced in the English Court, while parties have joined issue in the present case in a Scottish Court, but that is not a matter with which I am at present concerned.

The defender, inter alia, states that he is desirous of having access to and the society of his child, and he offers to provide a home for him. But it does not appear to me that he can possibly get the custody of the child without applying to the English Court, which he has not proposed to do. So that in this case there is no question about the custody of the child

The only question to which much debate was directed is, whether the pursuer was entitled to be paid for the whole aliment of the child or only for the half of it, the pursuer as mother of the child being liable to supply the half of the aliment herself. What she claims is the whole aliment, as is expressed in her first plea.

The law is clear about the obligation to aliment the child of a subsisting marriage, and also clear as to the obligation to support an illegitimate child. In the former case in a question between the father and mother, the burden lies, unless in exceptional circumstances, on the father; and in the latter case, unless in exceptional circumstances, it lies on the two parents equally, and the obligation of each parent in a question between them is an obligation of contribution.

But there is very little authority as to the obligation to aliment the child of a marriage after divorce. No opinion of any institutional writer on the point was quoted. It is laid down in Ersk. Instit. i. 6, 56, that the obligation to aliment children lies first on the father as head of the family, and failing him on the ascendants of the father, and only failing them on the mother; but the better opinion seems to be that it falls in the second place on the mother—See Ersk. i. 6, 56, note e. But these passages relate to the obligations of the parents while the marriage subsists, or when it has been broken by death, not when the marriage is dissolved by divorce, by which the whole relations between husband and wife are destroyed, and by which the husband who is divorced loses all the benefit of the marriage, and there remain no contractual or obediential relations between them at all. This is explained very fully by Lord Ormidale in Stewart v. Stewart, February 14, 1872, 10 Macph. 472, in which the claim of a divorced wife for aliment was repelled.

Our institutional writers describe the obligation of a parent to his child as obediential and arising simply from the relation of parent and child. As it is expressed by Erskine, ‘Parents are thus bound to maintain their issue, though the relation should be merely natural.’ That is to say, that the obligation results from the mere fact that the child is the issue of the parent, whether legitimate or illegitimate.

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Now, if that be the origin of the obligation, it must, I apprehend, lie on them equally. They seem to be in pari casu. The divorce has dissolved all inequality between husband and wife, and has left untouched the relations between parent and child. I think that the obligations after divorce must be substantially the same as in the case of illegitimate children. Both parents are responsible on precisely the same natural ground, and I can find no reason for choosing between them.

There seem to be no reported decisions on the point, except Dunn v. Mathews, January 22, 1842, 4 D. 454, and Ketchen v. Ketchen, 9 Macph. 690, to which the pursuer referred. In each of these cases the action was, as here, by a mother of a child against its father who had been divorced, and in each case decree was given. But the point now in question was not raised and no decision was given or opinion expressed in regard to it. I therefore cannot hold them as affecting the principle of decision, and I am of opinion that on principle it ought to be found that the defender is liable, but liable only to contribute equally with the pursuer in alimenting their child. In that view perhaps parties may agree that decree should be pronounced for aliment at the rate of £7, 10s. per annum.”

The pursuer reclaimed, and argued—The defender was liable for the whole aliment of the child. It would be very strange if a husband by committing a wrong towards his wife could release himself from part of his natural obligations to his children. Such a result was supported by neither sense nor law.

Argued for defender—It was only during marriage that the father was liable for the whole aliment of the children of the marriage. The reason of this was that during the marriage he was manager of the family funds, but when the marriage was dissolved the family funds were distributed, and the wife got a share of the property. It was therefore fair that she, if she was able to afford it, should bear part of the expense of alimenting the children— Bankton, i., 6, 15; Erskine's Institutes, i., 6, 56.