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 the estate. It was argued that the agreement was unenforceable.
Held: The executors’ appeal failed. The agreement was binding on the husband’s estate. Mrs Soulsbury had done everything she should have done to perform her part of the bargain, and it remained enforceable.
Ward LJ, Longmore LJ, Smith LJ
 EWCA Civ 938 – 2,  EWCA Civ 969, Times 14-Nov-2007,  Fam Law 13,  3 FCR 811,  WTLR 1841,  1 FLR 90,  2 WLR 834,  Fam 1
England and Wales
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Cited – Hyman v Hyman 1929
The husband had left the wife for another woman. Adultery by the husband was not a ground for divorce absent aggravating circumstances, such as incest. The parties had entered into a deed of separation under which the husband had paid two lump sums . .
Cited – Bennett v Bennett CA 1952
The wife sued for arrears of maintenance payments payable under a deed in consideration for which the wife covenanted not to proceed with the prayers in the petition for maintenance, to consent to their being dismissed, and not to present any . .
Cited – Goodinson v Goodinson 1954
W covenanted that for so long as the weekly payments of maintenance for herself and the child were punctually made, she would not commence or prosecute any matrimonial proceedings against the husband. The husband fell in arrears and she claimed the . .
Cited – Edgar v Edgar CA 23-Jul-1980
H and W separated and in 1976, without any pressure H and at the instigation of W, signed a deed of separation negotiated through solicitors. H agreed to purchase a house for W, to confer on her capital benefits worth approximately andpound;100,000, . .
Cited – Sutton v Sutton 1984
The husband and his wife agreed that in consideration, inter alia, of the wife consenting to the husband divorcing her on the ground of two years’ separation and consent, he would transfer the matrimonial home to her, and she would take over . .
Cited – Smallman v Smallman CA 1972
An order was sought under the 1882 Act to decide the shares in which the family home was to be held. An overall agreement had been negotiated in correspondence between solicitors that W should have a half share in the proceeds of sale of the . .
Cited – Gould v Gould CA 1970
H told W he would pay her pounds 15 a week as long as he had it. She issued a writ claiming payment of arrears of maintenance due.
Held: The agreement was unenforceable, since it was not sufficiently certain.
Lord Denning MR (dissenting) . .
Cited – Merritt v Merritt CA 1970
H and W owned their house jointly. When H left for another woman, he signed an agreement to pay Mrs Merritt a monthly sum, and eventually to transfer the house to her if Mrs M kept up the monthly mortgage payments. When the mortgage was paid off Mr . .
Cited – de Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
Cited – Minton v Minton HL 1979
Establishing Clean Break on Divorce
The House set out the principles for establishing a ‘clean break’ financial settlement on a divorce. Once a capital claim in a divorce has been given effect in a court order, the court does not have jurisdiction to vary it. Lord Scarman said: ‘Once . .
Cited – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
Cited – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Unilateral Contract Liability
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘pounds 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .
Cited – Errington v Errington and Woods CA 19-Dec-1951
There was a contract by a father to allow his son to buy the father’s house on payment of the instalments of the father’s Building Society loan.
Held: Denning LJ reviewed the cases and said: ‘The result of all these cases is that, although a . .
Cited – Kelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
Cited – Pagnan SpA v Feed Products Ltd ChD 1987
An agreement can be enforceable as an agreement on main terms only, with the detailed terms to be agreed later. Bingham J said: ‘The Court’s task is to review what the parties said and did and from that material to infer whether the parties’ . .
Cited – Amey v Amey FD 1992
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 . .
Cited – Peacock v Peacock FD 1991
The court considered its ability to vary a consent order, made in 1982 on the divorce, which provided for the sale of the matrimonial home ten years later in 1992 and for the equal division of the proceeds of sale. Periodical payments were to be . .
Cited – Warwick (Formerly Yarwood) v Trustee In Bankruptcy of Clive Graham Yarwood ChD 13-Sep-2010
The trustee sought to have set aside as an unlawful preference, the payment of 75% of the proceeds of sale of the former matrimonial home to the bankrupt’s wife, saying that the payment had been made after the presentation of the petition. The . .
Lists of cited by and citing cases may be incomplete.
Family, Wills and Probate
Updated: 01 January 2022; Ref: scu.259769