Introduction
18.1 The rules of jurisdiction and recognition and enforcement of foreign judgments in relation to aliment are very largely statutory. 1 They also reflect multilateral or bilateral arrangements with other countries. For this reason, we do not propose to discuss them here. We envisage that the statutory provisions on these matters would remain outside, and unaffected by, the proposed codification of Scottish family law. There is, however, a gap in the statute law in relation to choice of the law governing the obligation of aliment. This is the subject of this part of the report.
Present law
18.2 There is a remarkable dearth of authority on choice of law in relation to the alimentary obligation. The tendency has been for Scottish courts simply to apply Scots law, often without any consideration of private international law questions. 2 In many cases, of course, the parties would gain no advantage from raising such questions as the other system of law would recognise that, say, a person was bound to support his or her spouse or child, any differences relating only to matters of procedure or quantification which are generally regarded as being matters for the lex fori in any event. In many cases, too, aliment will arise as an incidental matter in a divorce action and will tend to be subsumed under the rule that the lexfori governs such matters. The choice of law question was however clearly raised in one case 3 in which an impecunious man of mature years raised an action of aliment against various relatives including his mother who was resident and domiciled in England. She argued that by English law she was under no liability to support the pursuer. The court accepted the argument that English law applied and sisted the action to allow the opinion of English lawyers to be obtained. Here the law of the domicile of the alimentary debtor was apparently taken as the governing law. In another case 4 a woman claimed damages for seduction and aliment for her child from an Indian prince temporarily resident in Scotland. It was held that her right to recover aliment for her child depended on English law, which was the law of the place where the alleged seduction took place, and which was also the law of her domicile, but which was not the law of the defender's domicile. The case was treated primarily as an action for seduction and was decided on the ground that the acts complained of were notuctionable by the lex loci delicti-"the grounds of action having arisen entirely in England, the rights and liabilities of parties must be regulated by English law, and . . . as by that law the action was not ... maintainable, it must be dismissed."' 5 Two of the judges dealt separately with the aliment issue but seemed to assume that the same principles applied. 6 The case, therefore is strongly coloured by the delictual approach and is an unsatisfactory authority on aliment as such. A more sophisticated approach was favoured by Lord Keith in Jelfs v Jelfs 7 when he referred to Bar's opinion that the law of the residence governed the obligation to aliment although it would give effect to a more extensive duty of support sanctioned by the personal law, the underlying consideration being that "if a man was released from his obligation to maintain his wife, because his personal law knew of no such obligation, or ignored it in the particular circumstances of the case, a foreign wife would now and again require to be supported at the expense of the poor's box." 8
18.3 The Maintenance Orders (Reciprocal Enforcement) Act 1972 contains special *Choice of law rules for the purposes of proceedings under Part 11 of the Act for the obtaining and registering of provisional orders. Section 21 defines a maintenance order as an order for the periodical payment of sums of money towards the maintenance of a person whom the person liable to make the payment is, "according to the law applied in the place where the order was made, liable to maintain". Section 7(2) of the Act provides that a Scottish court asked to confirm a provisional order made by a court in a reciprocating country must recognise those defences, and only those defences, available under the law of that country: a statement of the defences available is sent with the provisional order and must be accepted as conclusive. Similarly, under section 3(5) of the Act, the documents sent from a sheriff court which has made a provisional order against a defender resident in a reciprocating country must include a statement of the defences available under Scots law. The scheme of this part of the Act is that the law of the court making the provisional order applies: given the rules on jurisdiction under Part 11, this will also be the law of the pursuer's residence.
18.4 The Hague Convention of 1973 on the Law Applicable to Maintenance Obligations has not been signed by the United Kingdom. 9 It adopts the general principle that the law of the alimentary creditor's habitual residence governs the alimentary obligation, but it qualifies this general principle in several important respects. In the discussion paper we examined at some length the option of a solution based on the Hague Convention but concluded that it would have few advantages over a simple rule that a Scottish court dealing with a claim for aliment applies Scots law. Indeed, given that most actions for aliment in Scotland are brought by people who are habitually resident in Scotland, 10 the results under a Hague option and a lexfori option would generally be the same. As there was no support on consultation for a solution based on the Hague Convention we do not repeat our analysis of the modifications to the convention rules which would probably have to be made if a solution on these lines were to be acceptable in Scotland. 11
18.5 The conclusion which we reached in the discussion paper was that the practical effects of a suitably modified version of the Hague rules would be almost the same as those which would be achieved by a simple provision to the effect that a Scottish court should apply Scots law in dealing with any claim for aliment. As the latter solution would be simpler and easier to apply, as it would be directly in line with current practice throughout the United Kingdom, and as it received unanimous support on consultation, we recommend that it be adopted.
91. It should be provided that, subject to the provisions of the Maintenance Orders (Reciprocal Enforcement) Act 1972, courts in Scotland should apply the internal- law of Scotland in dealing with claims for aliment.
(Draft Bill, clause 43)