Divorced man’s payments to ex-wife could not be ‘ascribed’ to arrears of aliment, judge rules

Crawford Hill argued that payments he made to his former wife Sally-Anne Hunter following his bankruptcy should be ascribed and applied in reduction of the claimed arrears.

A judge in the Court of Session expressed his disappointment that there was no rule of law about ascription of payments, but ruled that the petition was “largely ill-founded”.

Lord Stewart (pictured) heard that Mr Hill and Ms Hunter were married in August 1993 and had two children together – Hannah, 20 and Callum, 18 – before the couple divorced in April 2004.

Following the divorce, by minute of agreement the parties made arrangements for maintenance of the respondent and for the children up to the age of 18 years.

It was agreed that for the maintenance of each child Mr Hill would pay Ms Hunter aliment at the rate of £700 per child per calendar month, and that he would pay her a spousal aliment and periodical allowance of £300 per calendar month for a period of five years.

However, the petitioner had difficulty in meeting his commitments and in September 2008 he was sequestrated by the sheriff at Edinburgh at the instance of the respondent, in respect of arrears of maintenance of more than £31,000.

In June 2010 the respondent served a first charge for payment of £9,257 on the petitioner, made up of a principal sum of £8,597.50 with interest of £452.37 and expenses of diligence of £207.13.

The issue around the first charge was whether certain payments made by the petitioner and his second wife to the respondent in the period since the petitioner’s bankruptcy should be ascribed, with the result that the arrears had been all but extinguished.

The respondent acknowledged that payments had been made and said she had taken some of those payments into account in arriving at the arrears figure to the date of the first charge of £8,597.50 (exclusive of interest).

However, she declined to take into account what she regarded as “voluntary” payments made to help her meet “ongoing” costs.

Counsel for the petitioner submitted that the concept of “ad hoc agency” explained how payments by a third party – typically a company in the same group or a spouse – discharged another’s debt, but the judge observed that this did not resolve the difficulty of whether the payments in this case were made towards the arrears of aliment or towards ongoing child-rearing costs.

As a matter of “commonsense”, counsel argued, there was no basis for ascription of the payments to anything other than the arrears which were the subject of the charge for payment.

On behalf of the respondent it was argued that unless the debt was paid in full a charge cannot be set aside in its entirety, and that even on the best case scenario for the petitioner there was still something to pay on the arrears.

Counsel referred to email exchanges between the parties which made it “quite clear” that the payments made after service of the first charge were for ongoing maintenance of the children.

Lord Stewart ruled that there was “no evidence” that he made it clear to the respondent that the payments were to go towards the arrears.

“If anything, quite the contrary,” he added.

In a written opinion, Lord Stewart said: “My decision is that the payments which are in controversy are not to be ascribed to the arrears of maintenance. Insofar as parties had a shared intention it was that the payments were to be for the ongoing costs of child maintenance. The first charge does not fall to be suspended.”

A second charge was served in December 2011 for the sum of £4,200, although £3,900 was caught by the sequestration and discharged so that only £300 remained in issue. The balance of £300 was arrears of periodical allowance for the month of June 2010, which was omitted from the arrears calculation in the first charge.

The dispute over the second charge was confined to the question whether another month’s periodical allowance was due, but the judge ruled that there was no debt to justify the service of the second charge.

He continued the case by order, without issuing an interlocutor, to hear parties’ submissions on the arithmetic in relation to the first charge, after noting that there seemed to be only “a small difference” in their calculations.

The judge added: “My inclination is to think that the interests of justice and of all individuals concerned would be best served if this action were not finalised for a few months to allow parties to make their own arrangements to settle the dispute.”