Gray v Gray
| Jurisdiction | Scotland |
| Judgment Date | 07 February 1968 |
| Date | 07 February 1968 |
| Docket Number | No. 19. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Hunter.
Husband and WifeFinancial provision on divorcePeriodical allowanceBasis of calculationGross income or net incomeSuccession (Scotland) Act, 1964 (cap. 41), sec. 26.
Sec. 26 of the Succession (Scotland) Act, 1964, empowers the Court in an action of divorce on any ground other than incurable insanity to make an order for payment to the pursuer by the defender of, inter alia, a periodical allowance.
Held that in determining the amount of such an allowance the basis of calculation should be the payer's gross income.
Thomson v. Thomson, 1943 S. C. 154, followed.
Observed by Lord Migdale that, as the question was one for the discretion of the Lord Ordinary, he could in any particular case start by looking at the husband's net income if he found it more convenient to do so.
Husband and WifeFinancial provisions on divorcePeriodical allowanceMatrimonial offence by pursuerWhether amount of periodical allowance necessarily to be reducedSuccession (Scotland) Act, 1964 (cap. 41), sec. 26.
In an action of divorce for desertion at the instance of a wife the pursuer obtained decree of divorce and applied for a periodical allowance. In a cross-action her husband was granted decree of divorce on the ground of her adultery, which was committed after he had left her. The Lord Ordinary awarded her a periodical allowance and made no reduction in it in respect of her adultery.
Held that there was no rule of law that the commission of a matrimonial offence by the pursuer in an action of divorce necessarily resulted in a reduction in the amount of any periodical allowance awarded.
ProcessReviewReclaiming motion against order for financial provision on divorce.
Observed that the making of an order for payment of a periodical allowance under sec. 26 of the Succession (Scotland) Act, 1964, and the amount of any such allowance, were matters within the discretion of the Court which granted decree of divorce; and that reclaiming motions against such orders should be discouraged.
RevenueIncome taxSmall maintenance paymentsPeriodical allowance and aliment for childrenFinance Act, 1944 (7 and 8 Geo. VI, cap. 23), sec. 25Income Tax Act, 1952 (15 and 16 Geo. VI and 1 Eliz. II, cap. 10), sec. 205Finance Act, 1960 (8 and 9 Eliz. II, cap. 44), sec. 40.
Opinion by Lord Migdale that payments of a periodical allowance of 5 per week awarded to a wife under sec. 26 of the Succession (Scotland) Act, 1964, and aliment of 2 per week for each of two children were "small maintenance payments" within the meaning of sec. 25 of the Finance Act, 1944, as re-enacted and amended.
Opinion reserved by Lord Cameron quoad the periodical allowance.
Mrs Grace M'Clure Or Gray brought an action of divorce against her husband, Robert Gray, on the ground of his desertion since about September 1961, and concluded for custody of the two children of the marriage, aliment at the rate of 2 per week for each child, and a periodical allowance of 5 per week until her remarriage or death. The summons in the action was signeted on 1st July 1965. On 7th March 1966 her husband brought a cross-action of divorce on the ground of her adultery in or about June 1962.
Neither action was defended on the merits, but in the wife's action the husband lodged a minute in which he pleaded that the Court should make no order for payment of a periodical allowance, that the sum sued for in name of periodical allowance was in any event excessive, and that the sums sued for in name of aliment were excessive. He averred in the minute, inter alia:"It is believed that on or about 22nd March 1963 the pursuer gave birth to a child, Gordon Gray, of whom the defender is not the father. The defender has raised a cross-action of divorce on the ground of the pursuer's said adultery."
The wife lodged answers to the minute, in which she admitted adultery, but pleaded, inter alia:"The defender's averments relative to the adultery of the pursuer, being irrelevant, should not be remitted to probation."
On 10th February 1967, after a proof in both actions, the Lord Ordinary (Hunter) granted decree of divorce in both actions and awarded the wife custody of the children, aliment of 2 per week for each child, and a periodical allowance of 5 per week.
LORD PRESIDENT (Clyde).In this case the wife has been granted a decree of divorce against her husband on the ground of his desertion. In a cross-action by the husband he has been granted decree of divorce against his wife on the ground of adultery. These decrees of divorce were not attacked before us. In the wife's action, and it is in that action only that the reclaiming motion has been presented, she concludes, in addition to divorce, for custody of the two children of the marriage, for aliment for them and for a periodical allowance to herself. The Lord Ordinary, after a full inquiry into the circumstances, awarded custody of the two children to the wife, fixed the amount of aliment at 2 per child per week and awarded the wife a periodical allowance of 5 per week. It appears that the husband has been living for some years with another woman, by whom he has had two children, and the wife has also one illegitimate child in addition to the two legitimate children of the marriage.
The only point taken in the reclaiming motion at the instance of the husband is in respect of the periodical allowance of 5 awarded to the wife by the Lord Ordinary. This allowance was awarded under the powers conferred by section 26 of the Succession (Scotland) Act, 1964.1 Under subsection (2) of that section it is provided that, where an application for such an award is made, the Court, on granting decree of divorce, "shall make with respect to the application such order, if any, as it thinks fit, having regard to the respective means of the parties to the marriage and to all the circumstances of the case, including any settlement or other arrangements made for financial provision for any children of the marriage."
The terms of subsection (2) appear to me to make it plain that the Court which is empowered to make the order in regard to periodical allowance is primarily the Court granting the decree of divorce, and the amount, if any, so to be awarded is left to the discretion of that Court. It was never contemplated, as I see it, that awards of periodical allowance should be subject to review and minute reconsideration by the Inner House, particularly in a case where the decree of divorce is not challenged in the Inner House. The subsection makes it clear that the amount of any periodical allowance is essentially a matter for the discretion of the Court which grants the decree of divorce. Something in the nature of ultra vires action on the part of the judge who granted the decree would, it seems to me, be necessary before the Inner House could or would interfere with the award of a periodical allowance. For the discretion conferred on the Court which grants the decree of divorce has deliberately been made a very wide one. As I said inDouglas v. Douglas2 (at p. 44), and I repeat it once again, "It was never the intention of the legislature that a full dress inquiry into the respective financial positions of the spouses should be made. This would be quite an illegitimate waste of time and money. Normally it should be
possible in the majority of cases for counsel at the Bar to agree the various figures without the need for proof at all."Notwithstanding all this we have had in the present case an elaborate citation of authority and of evidence, none of which in the end of the day has in any way persuaded me that the discretion vested in the Lord Ordinary has been in any way wrongly exercised.
It was argued to us that the Lord Ordinary made three errors in principle. In the first place it was said that he had calculated the allowance on the basis of the husband's gross earnings, whereas he should have calculated it on his gross earnings less the tax he would pay on these earnings. In Thomson v. ThomsonSC1it was laid down that in determining the amount of aliment to be paid by a husband to his wife, the amount to be awarded should be calculated upon the basis of the husband's gross income before deduction of tax, leaving it to the parties, as Lord Jamieson said at p. 157, to work out with the Commissioners of Inland Revenue their respective liabilities for tax. In my opinion that principle is a sound one and we ought to follow it. It would, in my view, cause injustice if the basis of calculation was to be the gross earnings of the husband less his tax liability on these earnings. For the husband would then pay his...
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