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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Merritt v Merritt [1970] EWCA Civ 6 (27 April 1970) URL: https://www.bailii.org/ew/cases/EWCA/Civ/1970/6.html Cite as: [1970] 2 All ER 760, [1970] 1 WLR 1211, [1970] WLR 1211, [1970] EWCA Civ 6 |
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COURT OF APPEAL.
B e f o r e :
LORD JUSTICE WIDGERY
LORD JUSTICE KARMINSKI
BETWEEN:
____________________
JOHN BERTRAM ![]() | ||
![]() | ||
MILLICENT JOAN ![]() |
____________________
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London W.C.2.)
Howlett & Durham, appeared for the Appellant (Defendant).
MR. M.G. JOHNSTON, instructed by Messrs. C.A. Maddin
(Surbiton), appeared for the Respondent (Plaintiff).
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
"In consideration of the fact that you will pay all charges in connection with the house at 133 Clayton Road, Chessington, Surrey, until such time as the mortgage repayment has been completed, when the mortgage has been completed I will agree to transfer the property into your sole ownership.
Signed, JohnMerritt.
25th May, 1966".
The first point taken on his behalf by Mr. Thompson is that the agreement was not intended to have legal relations. It was, he says, a family arrangement such as was considered by the Court in Balfour v.
Balfour, 1919, 2 King's Bench Division, page 571, and in Jones
v.
Padavatton, 1969, 1 Weekly Law Reports, page 328. So the wife could not sue upon it.
Mr. Thompson then relied on the recent case of Gould v.
Gould, 1969. 3 W.L.R. 490, when the parties had separated, and the husband agreed to pay the wife £l2 a week "so long as he could manage it". The majority of the Court thought those words introduced such an element of uncertainty that the agreement was not intended to create legal relations. But for that element of uncertainty, I am sure the majority would have held the agreement to be binding. They did not differ from the general proposition which I stated that
"when husband and wife, at arms' length, decide to separate, and the husband promises to pay a sum as maintenance to the wife during the separation, the Court does, as a rule, impute to them an intention to create legal relations".
When a husband and wife are living together in amity it is natural enough to presume that their discussions about money matters are not intended to create legally binding contracts. As Lord Atkin said in Balfour v.
Balfour,
"The common law does not regulate the form of agreements between spouses. Their promises are rot sealed with seals and sealing wax. The consideration that really obtains for them is that natural love and affection which counts for so little in these cold courts."
But, of course, once that natural love and affection has gone, as it normally has when the marriage has broken up, there is no room at all for the application of such a presumption. Lord Justice Salmon made this clear in Jones v.
Padavatton, to which reference has already been made, where he said, at page 332:
"As a rule when arrangements are made between close relations, for example between husband and wife, parent and child, or uncle and nephew in relation to an allowance, there is a presumption against an intention of creating any legal relationship. This is not a presumption of law, but of fact. It derives from experience of life and human nature which shows that in such circumstances men and women usually do not intend to create legal rights and obligations, but intend to rely solely on family ties of mutual trust and affection".
LORD JUSTICE KARMINSKI: I agree, and only desire to add this. It is in my view
of great importance, in considering whether or not an agreement of the kind which we have to consider here would create legal relations; to look at the surrounding facts. In the present case on 20th May 1966 the husband informed his wife that he was in love with another woman with whom he was living, and be added these words:
"When the house is paid for, I will consider signing over the other half to you."
In deciding therefore whether or not an agreement is intended to establish legal relations, it seems to me essential to look at the surrounding circumstances. In Balfour v. Balfour 1919, 2 King's Bench Division, page 571, the relevant facts were that the husband, who was employed in Government service in Ceylon, had to return there in 1916. The wife could not join him there at any rate for the time being because of her own ill-health and the husband agreed to pay her £30 a month for her support. At that time therefore the agreement was a perfectly friendly-one occasioned by a separation which was not, at any rate at that time, the desire of either of them.
(Appeal dismissed. Costs of £50 ordered to be paid to respondent by appellant personally).