H and W ran a public house held in H’s name. W left for another man. A clean break settlement was agreed under which H was to pay W andpound;120,000 in full and final settlement of all her claims and a draft note of order was to be placed before the court for the necessary order to be made. Before that happened W died. H sought rescission of the agreement and repayment.
Held: Scott Baker J said: ‘Matrimonial law has moved on somewhat since Smallman was decided. There is no longer a requirement to obtain the court’s approval. What the parties intended to do, in the present case, was to obtain the imprimatur of the court on a clean break agreement, so as to avoid the possibility of return at some later date, such as happened in, for example, Edgar v. Edgar (1981) FLR 19. It cannot therefore be said that the agreement is not effective because it was not considered by the court. Mr Coleridge for the husband accepts this. He also concedes that there is an agreement. His case is that it was vitiated by a change in a fundamental assumption underlying it. His argument is based on the observations of Lord Brandon in Barder v Caluori [1988] AC 20. ‘ The agreement however ‘stands or falls at law’. The real issue was whether the agreement could be set aside by reason of mutual mistake or frustration and concluded that the wife’s death soon after the agreement was not an event which entitled the court to intervene. The agreement stood and was enforced.
Judges:
Scott Baker J
Citations:
[1992] 2 FLR 89
Jurisdiction:
England and Wales
Cited by:
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 20 April 2022; Ref: scu.259833