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 responsibility for the mortgage. A decree absolute was made on the husband’s petition but he then refused to carry out his part of the bargain.
Held: If the agreement was enforceable as a contract, it would leave nothing for the court to do under sections 23 and 24 of the 1973 Act which give the court power to order maintenance and make property adjustments because the agreement pre-judged and foreclosed all financial questions. The wife’s consent to the divorce as agreed was an act of part performance, being an act referable to the contract. ‘her consent to the petition was in itself, in the circumstances, tied to the contract about the house’. The husband ‘stood by and let her perform that part of her bargain irretrievably, and that raised an equity’ in her favour.
Judges:
John Mowbray QC
Citations:
[1984] Ch 184
Statutes:
Matrimonial Causes Act 1973 1(2)(d) 23 24
Jurisdiction:
England and Wales
Citing:
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 – 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 by:
Cited – Commerzbank Ag v Price-Jones CA 21-Nov-2003
The respondent had received a bonus of andpound;250,000. His employers wrote to him in error increasing it. He later chose to stay rather than take redundancy because he now expected the full amount. He resisted an order for restitution. The . .
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, Equity
Updated: 12 May 2022; Ref: scu.188271