The husband had left the wife for another woman. The parties had entered into a deed of separation under which the husband had paid two lump sums and agreed to make weekly payments of 20 pounds for the life of the wife. The deed included a covenant by the wife that she would not institute any proceedings to make him pay more than this.
Held: The parties cannot lawfully covenant or make an agreement either not to invoke the jurisdiction or to control the powers of the court where jurisdiction in invoked. In partiicular, a wife cannot contract out of her matrimonial maintenance entitlements in a deed of separation.
Lord Atkin gave a short history of such contracts and commented on their effect: ‘We have to deal with a separation deed, a class of document which has had a chequered career at law. Not recognized by the Ecclesiastical Courts, such contracts were enforced by the common law. Equity at first frowned. Lord Eldon doubted but enforced them: cf. St. John v. St. John (1803) Ves. 525, 529 and Bateman v. Countess of Ross (1813) 1 Dow 235; and see the arguments of Sir Fitzroy Kelly and Mr Turner and of Mr Bethell in Wilson v. Wilson (1848) 1 H. L. C. 538, 550-553, 564, 565. Finally they were fully recognized in equity by Lord Westbury’s leading judgment in Hunt v. Hunt (1861) 4 D. F. and J. 221, in which he followed Lord Cottenham’s decision in Wilson v. Wilson (1846-1848) 1 HLCas 538, 550-553, 564, 565, where his argument for the respondent had prevailed. Full effect has therefore to be given in all courts to these contracts as to all other contracts. It seems not out of place to make this obvious reflection, for a perusal of some of the cases in the matrimonial courts seems to suggest that at times they are still looked at askance and enforced grudgingly. But there is no caste in contracts. Agreements for separation are formed, construed and dissolved and to be enforced on precisely the same principles as any respectable commercial agreement, of whose nature indeed they sometimes partake. As in other contracts stipulations will not be enforced which are illegal either as being opposed to positive law or public policy. But this is a common attribute of all contracts, though we may recognize that the subject-matter of separation agreements may bring them more than others into relation with questions of public policy.’ and ‘the court’s statutory powers to order a divorced husband to maintain his former wife were granted ‘partly in the public interest to provide a substitute for this husband’s duty of maintenance and to prevent the wife from being thrown upon the public for support”
Lord Hailsham LC said: ‘However, this may be, it is sufficient for the decision of the present case to hold, as I do, that the power of the court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own convenant preclude herself from invoking the jurisdiction of the court or preclude the court from the exercise of that jurisdiction.’ The existence of the covenant did not preclude the wife from making an application to the court: ‘this by no means implies that, when this application is made, the existence of the Deed or its terms are not the most relevant factors for consideration by the court in reaching a decision.’
Judges:
Lord Hailsham LC, Lord Atkin
Citations:
[1929] AC 601, [1929] All ER 245, [1929] P 1
Jurisdiction:
England and Wales
Cited by:
Cited – AI v MT FD 30-Jan-2013
The parties had asked the court to apply rabbinical law in resolving their matrimonial proceedings, applying by consent the result of a rabbinical arbitration.
Held: The court could not accept an ouster of its jurisdiction over children of the . .
Cited – S v S FD 14-Jan-2014
The court was asked to approve a settlement reached under the IFLA arbitration scheme.
Held: The order was approved, but the court took the opportunity to give guidance. . .
Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Lists of cited by and citing cases may be incomplete.
Jurisdiction, Family
Updated: 08 May 2022; Ref: scu.509303
