Gould v Gould
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE MEGAW |
| Judgment Date | 18 June 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0618-1 |
| Date | 18 June 1969 |
| Court | Court of Appeal (Civil Division) |
[1969] EWCA Civ J0618-1
In The Supreme Court of Judicature
Court of Appeal
Appeal of defendant from judgment of Judge Pratt at Exeter County Court on 11th June, 1968.
The Master of The Rolls (Lord Denning)
Lord Justice Edmund Davies and
Lord Justice Megaw.
Mr. J.R. WHITLEY (instructed by Messrs. Amery-Parkes & Co., Agents for Messrs. G.D. Cann & Hallett, Exeter) appeared on behalf of the Defendant Appellant.
Mr. L.HERRICK COLLINS (instructed by Messrs. Ashford Penny & Harward, Exeter) appeared on behalf of the Plaintiff Respondent.
Mr. and Mrs. Gould were married some years ago. They have two children. In October 1965 the husband left the wife. They went to solicitors. An arrangement was made for the husband to pay the wife £12 a week for herself and the two children. Later on they came together again. On the 15th May, 1966, the husband left the wife for the second time. He agreed to pay her £15 a week; but there was nothing in writing. He paid the £15 a week for some considerable time. He often sent it by cheque and little notes with it, showing that it was £15 a week. From October 1967 he fell behind in his payments. He made some payments in January and early February, 1968. But later on in February 1968 he met her and told her he could not pay the full amount in the future.
The wife issued a writ claiming the balance outstanding for the period up to the time when he gave notice, namely, the 17th February, 1968. She claimed 13 weeks at £15 a week - £195; but gave credit for the payments in January and early February of £60: leaving a balance of £135. The husband put in a defence, denying that he had entered into an agreement with her to pay her maintenance as alleged, or at all. At the trial before Judge Hugh Pratt at Exeter, the husband submitted that there was no agreement because there was no intent to create legal relations. The Judge gave judgment quite shortly: "I found that the agreement entered into between the parties in May was intended to create legal relations and to be enforceable" Now there is an appeal to this Court.
The evidence shows that the husband agreed to pay the wife £15 a week. But he qualified it by saying: "………. so long as the business is O.K.!", or "so long as I can manage it". The question is whether that qualification means that there was no enforceable agreement at all.
To decide this question, I will read all the passages on the point. They are quite short.
The wife in examination-in-chief said: "On 15th May, 1966, my husband left and he agreed to pay mc £15 each week although there was nothing in writing. He sent a Postal Order every week and he also agreed to pay the mortgage on the bungalow."
In cross-examination she said: "He said he would continue to pay me £15 a week. He had asked me on several occasions before he left how much I would need if he left me. I said £15. He said he would pay me as long as he had it. He has a garage business." Then she described an incident a few weeks later in June 1966. "We went to Woodbury Common" - that is near Exeter - "to talk over the situation. It was a long meeting. He said he did not intend to return, but he would continue to pay £15, as long as the business was O.K. He might have said I must be careful not to get into having to pay for things in case he should not pay." In re-examination she said: "He agreed to pay me £15 a week for myself and the children and pay the mortgage. There was no agreement that the £15 would go up or down as the business might go up or down".
The husband said: "I left on a Saturday night. My wife asked me what I was going to do about money. I asked her how much she required. She said £12 or thereabouts. I also paid other bills. I suggested I would give her £15 each week. She said for how long. I said as long as I can manage it I paid her £15 generally, although sometimes I got in arrears. I have also paid the mortgage rates. In June we had a meeting. I told her that I was not going back, and that, as I was associating with another woman, I told her it was not certain that I could pay indefinitely I kept up the payments of £15 a week until November 1967 occasionally getting intoarrears and making it up. At the end of February I saw the wife again. I told her about my health and that payment's would have to be reduced. She asked how much, and I said I could not commit myself." That is the whole of the evidence.
The first question is whether, on that evidence, the Judge was entitled to find that there was an intention to create legal relations. I think he was so entitled. This question of an "intent to create legal relations" is not to be resolved by looking into the winds of the parties: for "the devil himself knoweth the thought of man". They probably gave no thought to it. It is not the actual intention of the parties, but the intention which the Court imputes to them. It is to be found by looking at what the parties said and did in the situation in which they found themselves: and then asking: what: would reasonable people think about it? Would they regard it as intended to be binding? And that is equivalent to a Judge asking himself that one question: Is this an agreement which ought to be told to be binding in law? If so, the Court enforces it. Otherwise not. Thus, when husband and wife are living together happily, the Court does not, as a rule, impute to them, by their domestic arrangements, an intention to create legal relations. That was decided in Balfour v. Balfour (1919 2 K.B. 271): though I observe that in the recent case of Pettitt v. Pettitt (1969 2 W.L.R. 966) Lord Hodson said (at page 983) that, on the facts, Balfour v. Balfour was an "extreme case", and Lord Upjohn said (at page 992) that it "stretched that doctrine to its limits:" But 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.No matter whether the agreement be in writing or by word of mouth, it is held to be intended to be binding. That is shown by a decision of this Court in the case of the Executors of H. Peters, deceased v. Inland Revenue Commissioners (1941 2 A.E.R.620), where there was an oral agreement on separation by a husband to pay the wife £350 a year by monthly instalments. The instalments were subsequently reduced by the husband without objection by the wife. This Court reversed the decision of the tribunal of fact (the Inland Revenue commissioners) and...
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Merritt v Merritt
...cut and dried. It may safely be presumed that they intend to create legal relations. 9 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 £12 a week "so long as he could manage it". The......
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Soulsbury v Soulsbury
...once it was accepted that there was consideration for the promise there was no question about the enforceability of the agreement. 25 Gould v Gould [1970] 1 Q.B. 275 is another example where the husband told the wife he would pay her £15 a week as long as he had it. She issued a writ cla......
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Warwick (Andrea) v Trustee in Bankruptcy of Clive Graham Yarwood
...existence of consideration and the intention to create legal relations) were established. He cited Goodinson v Goodinson [1954] 2 QB 188, Gould v Gould [1970] 1 QB 275 and Merritt v Merritt [1970] 1 WLR 1211. 24 Although earlier in his judgment, at paragraph 21, he had noted the first insta......
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Allan v Allan
...binding for it lacks the essential element of intention to create legal relations and also consideration. My attention has been drawn to GOULD v GOULD [1969] 3 All E.R. 728 and the classic case of BALFOUR v BALFOUR [1919] 2 K.B. 571. Having read these cases, I have no hesitation in holding ......