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Balfour v Balfour

[1919] 2 KB 571


This case considered whether there was an intention to create legal relations when a married couple entered into an arrangement pursuant to which the husband would pay his wife money while they were living separately as a result of illness.

The Court held that domestic agreements between spouses were not intended to create legal relations, with the onus on the party claiming a contract to show there was intention.

Note: there is no presumption against legal intention in domestic arrangements in Australia; in all cases the onus is on the party alleging the contract to demonstrate that there was an intention and that intention is determined objectively: Ermogenous.

Conflict between man and woman



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.


Judgment (Lord Justice Atkin)

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. 

The defence to this action on the alleged contract is that the defendant, the husband, entered into no contract with his wife, and for the determination of that it is necessary to remember that there are agreements between parties which do not result in contracts within the meaning of that term in our law. The ordinary example is where two parties agree to take a walk together, or where there is an offer and an acceptance of hospitality. Nobody would suggest in ordinary circumstances that those agreements result in what we know as a contract, and one of the most usual forms of agreement which does not constitute a contract appears to me to be the arrangements which are made between husband and wife. It is quite common ... that the two spouses should make arrangements between themselves ... To my mind those agreements, or many of them, do not result in contracts at all, and they do not result in contracts even though there may be what as between other parties would constitute consideration for the agreement. ... it constantly happens, I think, that such arrangements made between husband and wife are arrangements in which there are mutual promises, or in which there is consideration in form within the definition that I have mentioned. Nevertheless they are not contracts, and they are not contracts because the parties did not intend that they should be attended by legal consequences.  ... the small Courts of this country would have to be multiplied one hundredfold if these arrangements were held to result in legal obligations. They are not sued upon, not because the parties are reluctant to enforce their legal rights when the agreement is broken, but because the parties, in the inception of the arrangement, never intended that they should be sued upon. Agreements such as these are outside the realm of contracts altogether. The common law does not regulate the form of agreements between spouses. Their promises are not sealed with seals and sealing wax. The consideration that really obtains for them is that natural love and affection which counts for so little in these cold Courts. ... In respect of these promises each house is a domain into which the King's writ does not seek to run, and to which his officers do not seek to be admitted. The only question in this case is whether or not this promise was of such a class or not. ... it appears to me to be plainly established that the promise here was not intended by either party to be attended by legal consequences. I think the onus was upon the plaintiff, and the plaintiff has not established any contract. The parties were living together, the wife intending to return. The suggestion is that the husband bound himself to pay 30l. a month under all circumstances, and she bound herself to be satisfied with that sum under all circumstances .... To my mind neither party contemplated such a result. I think that the parol evidence upon which the case turns does not establish a contract. I think that the letters do not evidence such a contract, or amplify the oral evidence which was given by the wife, which is not in dispute. For these reasons I think the judgment of the Court below was wrong and that this appeal should be allowed.. 

[my emphasis]



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