Merritt v Merritt
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 27 April 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0427-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 April 1970 |
[1970] EWCA Civ J0427-1
The Master of The Rolls (Lord Denning)
Lord Justice Widgery
Lord Justice Kahminski
In The Supreme Court of Judicature
Court of Appeal
Mr. A. A. R. Thompson, instructed by Messrs. Wilkinson, Howlett & Durham, appeared for the Appellant (Defendant).
Mr. M.G. Johnston, instructed by Messrs. C.A. Maddin (Surbiton), appeared for the Respondent (Plaintiff).
Husband and wife married as long ago as 1941. After the War in 1949 they got a building plot and built a house. It was a freehold house, No. 133, Clayton Road, Hook, Chessington. It was in the husband's name, with a considerable sum on mortgage with a Building Society. There they lived and brought up their three children, two daughters, aged now 20 and 17, and a boy now 14. The wife went out to work and contributed to the household expenses.
Early in 1966 they came to an agreement whereby the house was to be put in joint names. That was done. It reflected the legal position when a house is acquired by a husband and wife by financial contributions of each.
But, unfortunately, about that time the husband formed an attachment for another woman. He left the house and went to live with her. The wife then pressed the husband for some arrangement to be made for the future. On 25th May they balked it over in the husband's car. The husband said that he would make the wife a monthly payment of £40 and told her that out of it she would have to make the outs banding payments to the Building Society. There was only £180 outstanding. He handed over the Building Society's mortgage book to the wife. She was herself going out to work, earning net £7.10.0d. a week.
Before she left the car she insisted that he put down in writing a further agreement. It forms the subject- of the present action, fie wrote these words on a piece of paper:–
"In consideration of the fact that you will pay all charges in connection with the house at 133 Clayton Road, Chessington, Surrey, until such time as the mortgage repayment has been completed, when the mortgage has been completed I will agree to transfer the property into your sole ownership.
Signed, John Merritt. 25th May, 1966".
The wife took that paper away with her. She did, in fact, over the ensuing months pay off the balance of the mortgage, partly, maybe, out of the money the husband gave her, £40 a month, and partly out of her own earnings. When the mortgage had been paid off, he reduced the £40 a month down to £25 a month.
The wife asked the husband to transfer the house into her sole ownership. He refused to do so. She brought an action in the Chancery Division for a declaration that the hoi we should belong to her and for an order that he should make the conveyance. The Judge made the order; but the husband now appeals to this Court.
The first point taken on his behalf by Mr. Thompson is that the agreement was not intended to have legal relations. It was He says a family arrangement such as was considered by the Court in Balfour v. Balfour. 1919, 2 King's Bench Division, page 571, and in Jones v. Padavatton. 1966, I Weekly Law Reports, page 328. So the wife could riot sue upon it.
I do not think those cases have any application here. The parties there were living together in amity. In such cases their domestic arrangements are ordinarily not intended to create legal relations. It is altogether different when the parties, are not living in amity but are separated, or about to separate. They then bargain keenly. They do not rely on honourable understandings. They want everything cut and dried. It may safely be presumed that they intend to create legal relations.
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 majority of the Court thought those words introduced such an element of uncertainty that the agreement was not intended to create legal relations. But forthat element of uncertainty, I am sure the majority would, have held the agreement to be binding. They did not differ from the general proposition which I stated that "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".
In all these cases the Court does not try to discover the intention by looking into the minds of the parties. It looks at the situation in which they were placed and asks itself: Would reasonable people regard the agreement as intended to be binding?
Mr. Thompson sought to say that this agreement was uncertain because of the arrangement for £40 a month maintenance. That is obviously untenable, Next he said that there was no consideration for the agreement. That...
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... ... 753A–C ) ... Lauerman v. Lauerman (Practice Note) [ 1992 ] 1 W.L.R. 734 approved ... Merritt v. Merritt [ 1992 ] 1 W.L.R. 471 disapproved ... The following cases are referred to in the judgment: ... G. (formerly P.) v. P ... ...
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Warwick (Andrea) v Trustee in Bankruptcy of Clive Graham Yarwood
...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 instance decision in Sutton v Sutton [1984] Ch 184......
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Soulsbury v Soulsbury
...binds them in law. Peters (Executors) v. Inland Revenue Commissioners [1941] 2 All E.R. 620 and the recent decision of Stamp J. in Merritt v. Merritt, “The Times,” May 15 th, 1969, afford examples of this. But it is upon the spouse asserting that such a contract has been entered into to pro......
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Illegality
...See ibid. 38 See, for example, Family Law Act, RSO 1990, c F.3, ss 52–53. And see Chapter 4, Section C. 39 Merritt v Merritt , [1970] 2 All ER 760 (CA). And see Chapter 4, Section C. 40 Bruker v Marcovitz , 2007 SCC 54, [2007] 3 SCR 607 (decided on the basis of the equivalent rule of Quebec......
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Intention to Create Legal Relations
...informal arrangement that was not intended to be legally enforceable. On the other hand, it is quite conceivable, 85 Ibid at 621. 86 [1970] 2 All ER 760 (CA) [ Merritt ]. Compare with McKinney v McKinney (1980), 17 RFL (2d) 308 (BCSC) (mere statements of intention not intended to create leg......
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Contract and the family: whither intention?
...Agreements reached by parties who are separated are far more likely to be enforced: Popiw v Popiw [1959] VR 197; Merritt v Merritt [1970] 1 WLR 1211. (2) Ermogenous v Greek Orthodox Community of SA Inc (2002) 187 ALR 92, 100 (`Ermogenous'). The High Court suggested that presumptions of inte......