Williams v Williams
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING |
| Judgment Date | 14 December 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J1214-4 |
| Court | Court of Appeal |
| Date | 14 December 1956 |
[1956] EWCA Civ J1214-4
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Denning
Lord Justice Hodson and
Lord Justice Morris
Mr. STUART PRIESTLEY (instructed by Messrs. Pennington & Son, Agents for Messrs. Barker, Son & Sherwood, and over) appeared on behalf of the Appellant (Defendant).
Mr. H. EDMUND DAVIES Q. C. and Mr. W.M. BAYNE-POWELL (instructed by Messrs. Hazelwood. Hare & Co., Agents for Messrs. Smith, navies & Jessop, Aberystwyth) appeared on behalf of the Respondent (Plaintiff),
In this case a wife claims sums due to her under a maintenance agreement. No evidence was called in the Court below because the facts are agreed. The parties were married on the 25th April, 1945: they have no children. On the 24th January, 1932, the wife deserted the husband. On the 26th March, 1952 they signed the agreement now sued upon, which has three clauses:, "(1) The Husband will pay to the Wife for her support and
this promise from her that she will maintain herself and will not pledge his credit he has an added safeguard to protect himself from all this worry, trouble and expense. That is a benefit to him which is good consideration for his promise to pay maintenance. That was the view which appealed to the County Court Judges and I must say that it appeals to me also.
There is another ground on which good consideration can he found. Although the wife was in desertion, nevertheless it must be remembered that desertion is never irrevocable. It was open to her to come back at any time. Her right to maintenance was not lost by the desertion. It was only suspended. If she made a genuine offer to return which he rejected, she would have been entitled to maintenance from him. She could apply to the magistrates or the High Court for an order in her favour. If she did so, however, whilst this agreement was in force, the 30s, Od, would be regarded as prima facie the correct figure. It is a benefit to the husband for it to be so regarded, and that is sufficient consideration to support his promise.
I construe this agreement as a promise by the husband to pay his wife 30s. Od, a week in consideration of her promise to maintain herself during the time she is living separate from him, whether due to her own fault or not. The wife cannot throw over the agreement and seek more maintenance from him unless new circumstances arise making it reasonable to allow her to depart from it. The husband cannot throw it over unless they resume married life together (in which case it will by inference be rescinded) or they are divorced (in which case it is a post-nuptial settlement and can be varied accordingly), or perhaps other circumstances arise not envisaged at the time of the agreement, Nothing of that kind has, however, occurred here. The husband must honour his promise.
I would dismiss the appeal accordingly.
LORD JUSTICE HODSON I agree. The facts, as they are circumstance surrounding the document that we have to consider, are these. On the 25th April 1945, the parties to the agreement were married. There are no children of the marriage. On the 24th January, 1952, the wife deserted the husband. On the 26th March, 1952 the agreement was entered into. It is to be inferred, and it was conceded, that the desertion which started on this 24th January 1952, was continuing at the date of the agreement. The agreement is what is called a "maintenance agreement, providing for payments by the husband to the wife of 30s. od. a week. The wife has sued upon the agreement. The husband's answer is that there is no consideration — that, the agreement not being under seal, the contract requires consideration to support it.
The agreement describes the parties by their names, followed in the one case by the description "hereinafter called the Husband" and in the other case by the description "hereinafter called the wife", giving separate addresses for each party. paragraph 1 provides: "The Husband will pay to the Wife for her support and maintenance a weekly sum of One Pound Ten Shillings to be paid every four weeks during the joint lives of the parties so long as the Wife shall lead a chaste life". There is nothing in that agreement to control the duration of the payments except the joint lives of the parties. There is nothing to say that the payments shall only be made while they shall be living apart, or while they shall remain husband and wife, or indeed any other limitation except life and chastity. Then provision is made for the first payment to be made on the 15th April, 1952.
In view of the terms of that agreement and the vagueness and uncertainty whether this is to cover periods when the parties are living together, or living apart, or both, it might be arguable that this document is not enforceable at all but void. But I think that it is too late near to argue that, as a document in almost exactly the same form was regarded as valid in this Court in a case of Goodinson v. Goodinson (reported in 1954, 2 Queen's Bench, page 113). Clause 2 of the agreement that we are consideringprovides that "The Wife will out of the said weekly gum or otherwise support and maintain herself and will indemnify the Husband against oil debts to be incurred by her and will not In any way at any time hereafter pledge the Husband's credit". That is the clause which is particularly to be noticed, because the following clause, clause 3, it has been agreed between the parties, does not provide any consideration. Clause 2 is in the same form as a clause which was considered in Goodlnson's case. It was held in that case that such a clause provided good consideration by the wife, moving from the wife to the husband. Clause 2 of this agreement is in three parts - first, that she will...
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