CUSTODY OF CHILDREN.

In any suit or other proceeding for obtaining a judicial separation or a decree of nullity of marriage, and on any petition for dissolving a marriage, the Court may from time to time, before making its final decree, make such interim orders, and may make such provision in the final decree, as it may deem just and proper with respect to the custody, maintenance and education of the children the marriage of whose parents is the subject of such suit or other proceeding; and may, if it shall think fit, direct proper proceedings to be taken for placing such children under the protection of the Court of Chancery, 20 & 21 Vict. c. 85, s. 35. In Curtis v. Curtis, 27 L. J. 16, an interim order was made that the children should remain in the custody of their mother for three months; and it was decided also, on a further hearing, that, when an order for the custody of children is prayed for, that question must be gone into during the cause and before the final decree, Curtis v. Curtis, 27 L. J. 73. In Robotham v. Robotham, 27 L. J. 61, an order was refused on the ground that the husband was in America and not likely to interfere with them.

There was a similar refusal in Seymour v. Seymour, 7 W. R. 296, but not on the ground that there was no mention of them in the prayer, as reported,

for their custody, &c.; such was in the prayer, and it was also argued by counsel, as the husband was expected, and moreover, appeared within a few days of the decree. In Marsh v. Marsh, 28 L. J. 13, the Court held that it has a discretionary power exceeding that possessed by Courts of Common Law and Equity, and should, in exercising it, make such orders as are just and proper with reference to the circumstances affecting the cause, taking into consideration the interests both of the children and parents.

A child in the custody of a third person who was considered to lean more towards one parent than the other, was ordered to be delivered up to the custody of its paternal grandmother, Boynton v. Boynton, 7 W. R. 181. Other orders of the Court will be found in Spratt v. Spratt, 6 W. R. 860, 31 L. J. 269; Hooke v. Hooke, MSS.; Tarbuck v. Farbuck, 27 L. J., 62 note. It must be remembered that, at Common Law, the father was entitled to the custody of all his children, although within the age of nurture; but by 2 & 3 Vict. c. 102, it was enacted that it should be lawful for the Court of Chancery to make an order that infants under the age of seven years should be delivered to, and remain in their mother's custody until the age of seven; and when they have attained that age, the Court of Chancery is empowered to make an order giving the mother access to them occasionally: if they have exceeded

or attained the age of fourteen, they may exercise their own discretion.

ALIMONY.

Alimony is the wife's allowance, made to enable her to support and maintain herself, either during the proceedings of a matrimonial cause, then technically termed alimony pendente lite; or at its conclusion, and then termed permanent alimony.

It is a term borrowed from the old Ecclesiastical Law, still forms an important, if not perhaps the most important part of a cause for judicial separation or divorce at the present time; and has necessarily been repeatedly brought under the notice of the present Court for Divorce and Matrimonial Causes.

mode of For a wife to entitle herself to alimony penlution. dente lite, she must first prove the factum of a marriage by filing an affidavit; and after the husband has appeared, she may proceed to file a petition for it, and serve a copy of the petition on her husband, or on his proctor, solicitor, or attorney, on the same day, rule 25: then, providing her husband has filed his answer thereto, upon oath within eight days after the filing of his wife's petition, she may move the Court at its next sitting to decree her alimony pendente lite, provided that she, previous to moving the Court,

has given at least two days' notice to her husband, or to his proctor, solicitor, or attorney, of her intention so to do, rule 28: and in case the wife should not be satisfied with her husband's answer, she may, but subject to any order as to costs, examine witnesses in support of her petition, rule 27. In one case, not yet reported, in which this occurred, the Judge Ordinary intimated that some notice ought to have been given to the husband; but as he appeared to be present in court, the examination was allowed to be proceeded with, Hooke v. Hooke, MSS.

Alimony may be ordered to be paid monthly, Godman v. Godman, MSS.; but, as before stated, care should be taken to petition for it before the decree for divorce or separation is made, Sykes v. Sykes, MSS. Alimony pendente lite is not granted in cases where the husband has not entered an appearance. In Tomkins v. Tomkins, 6 W. R. 545, the Judge Ordinary granted a fifth of the husband's net income pendente lite, observing that where the husband had appeared he found no difficulty in granting alimony pendente lite; but in cases where the husband had not appeared, he did not think he had power to grant it, as rule 25 appeared to be intended to prevent any such application; vide also Deane v. Deane, 28 L. J. 23, 30 L. T. 270. The Judge Ordinary also allowed the expense of ordinary current repairs, but not extraordinary and permanent improvements, to be deducted from the husband's income derived

from real property, and granted one-fifth as fair alimony pendente lite, observing that alimony is generally due from the return of the citation, Hayward v. Hayward, 6 W. R. 639, 1 S. & T. 85; nor is it allowed where the wife has been proved guilty of adultery by a competent tribunal, Holt v. Holt, 28 L. J. 12.

For permanent alimony it has been usual in the old Ecclesiastical Courts to allow about onethird of the husband's income Cooke v. Cooke, 2 Phillimore, 44. In Deane v. Deane, 1 S. & T. 90, which was a suit for judicial separation, upon application for alimony, and it appearing that there were eight children, none of whom were with the husband, the Judge Ordinary decreed a moiety of the husband's income. It may be here mentioned that when alimony is ordered by the Judge Ordinary, either party dissatisfied with the amount, has, 20 and 21 Vict. c. 85. s. 55, a right to appeal within three months to the Full Court, whose decision in this as in all other appeals against any decrees made by the Judge Ordinary alone will be final.

Should there be a considerable alteration of circumstances on either side, the old Ecclesiastical Courts would, if the alterations were clearly proved, make a reduction in the sum heretofore decreed as permanent alimony. And the new Court, doubtless, will do the same, provided a sufficient case is made out; for in Saunders v. Saunders, 6 W. R. 328, 1 S. & T. 72, the Judge