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Alimony

wife, husband, amount, divorce, court, income, principle, husbands and allowance

ALIMONY (from the Latin alimonium or alimonia, a word which is used by the classical writers, and signifies " mainte nance or support "). By the law of Eng land a wife is presumed to have surren dered the whole of her property to her husband upon marriage, and consequently to be entirely dependent upon him for her future maintenance. Upon this principle, it is reasonable that if a separation takes place, the wife should have a portion of her husband's estate allotted to her for her subsistence ; and this allotment, when made by the ecclesiastical courts, is termed " alimony." The right of a wife to this provision depends, however, en tirely upon the truth of the presumption, that she has not sufficient means, inde pendently of her husband, to support her in her appropriate station in life ; for in cases where she has a separate and suffi cient income beyond the husband's con trol, the wife is.not entitled to alimony.

Alimony, in common with other sub jects of matrimonial litigation, falls pro perly under the exclusive cognizance of the ecclesiastical courts; for though courts of equity have not unfrequently decreed a separate maintenance resembling alimony, yet their interference in such cases seems to have proceeded upon the ground of enforcing some express agreement be tween the parties, and is not founded upon the right of the wife to a portion of her husband's estate, resulting from the general principle above stated. In the ecclesiastical court, the allotment of ali mony is incidental to a decree of divorce a mews et thoro upon the ground of cruelty or adultery on the part of the husband. It may be either temporary or permanent: in the first case, while the proceedings in the suit for a divorce are depending, the court will, generally speaking, allot ali mony to the wife pendente lite, or during the continuance of litigation ; and in the second case, when a decree of divorce has been obtained on either of the above grounds, a permanent provision may be riven to her ; in both cases the allotment is made in the form of a st pend for her maintenance from year V. year, and is proportionate to the estate of the hus band.

The amount of alimony depends wholly upon the discretion of the court, which is exercised according to the circumstances of each particular case. In forming their estimate in this respect, the courts have held that, after a separation on account of the husband's misconduct, the wife is to be alimeuted as if she were living with him as his wife ; they attend carefully to the nature as well as to the amount of the husband's means, drawing a distinc tion between an income derived from property and an income derived from per sonal exertion. The station in life of both parties, and the fortune brought by the wife, are also considered ; and much stress is laid upon the disposal of the children and the expense of them. The conduct of the parties forms

also a very material consideration: where the wife has eloped from her husband, or where the sentence of divorce proceeds upon the ground of her adultery, the law will not compel the allowance of alimony. In assigning the amount of alimony in order to discourage vexatious litigation, as well as upon the just principle that innocence of imputed misconduct is to be presumed until the contrary is proved, alimony during the continuance of a suit is always much less in amount than per manent alimony. Thus in the former, the proportion usually allowed is one fifth of the net income of the husband ; in the latter, after a charge of cruelty or adultery on the part of the husband has been established, a moiety of the whole income is frequently given. This seems to be the result of numerous cases in which the amount of alimony has been decided ; but no general rule can be laid down upon this subject.

The assignment of alimony during the continuance of a suit will not discharge the husband from liability for his wife's contracts ; but when the court has allotted her a permanent maintenance upon the termination of a suit, the wife is liable for her own contracts, and the husband is wholly discharged from them. On this ground, and with a view to the protection of the husband, the ecclesiastical court has sometimes granted alimony in eases where the wife, by her own profligacy or extravagance, has thrown enormous ex pense on her husband, and has thereby forfeited her equitable title to a subsist ence from his estate.

The equivalent in Scottish law to the term alimony is aliment or alimentary allowance. Allowances coming under this character, or, as they may generally be described, periodical payments suffi cient only for the bare support of the recipient, and made to him in the under standing that he requires such an allow ance for his support, are not attachable by the process of atTestment [ARRESTMENT j. A wife is entitled to aliment from her husband when she is deserted by him, when she is judicially separated from him, and during the continuance of an action of divorce, whether at his or her own instance. She has no right to ali ment in the case of a voluntary contract of separation. It is a general principle of the law of Scotland, that a person who by disease or otherwise is unable to sup port himself, is entitled to an alimentary allowance from the nearest relation he can prove capable of affording it, but the House of Lords have shown a disposition to restrict the operation of this principle. The father of an illegitimate child is bound to make an alimentary allowance in its favour, the amount and the time during which it is to continue depend ing on his rank and fortune.