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Key information

Court of Appeal, England

Warrington LJ
Duke LJ
Atkin LJ

Judge at first instance
Justice Sargant

Intention to create legal relations
( Domestic arrangement)

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AustraliaBalfour v Balfour

[1919] 2 KB 571


Husband (defendant) promised to pay his wife £30 per month whilst she remained in England due to illness (he resided in Ceylon (Sri Lanka)).  The parties subsequently divorced and an issue arose as to whether agreement was enforceable (she had, by this time, received an order for alimony). When agreement was made, the parties were on amicable terms.  Mrs Balfour succeeded at first instance.

Court of Appeal (Atkin LJ)

The agreement was not enforceable because the parties did not intend to create legal relations.  This is so even though there may have been consideration.  Agreements between spouses ‘are not contracts because the parties did not intend that they should be attended by legal consequences.’  The parties, ‘in the inception of the arrangement, never intended that they should be sued upon.’  To permit them to be enforced would burden the small courts with numerous claims.  Domestic agreements of this nature [between spouses] are outside the realm of contract altogether.  Atkin LJ also noted that ‘The consideration that really obtains for [spouses] is that natural love and affection which counts for so little in these cold courts.’  The onus was on the plaintiff to prove intent and she failed.


Note: in Australia presumptions should no longer be used: see Ermogenous