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Popiw v Popiw

[1959] VR 197

Overview

Helga Popiw left her husband and, in an effort to entice her back, her husband orally promised that if she returned he would put the title to the home in their joint names. Helga returned (for a few weeks only) and left after a dispute. Was she entitled to enforce her husband’s promise?

Helga's husband argued that Helga was already under a duty to return to cohabit with him and consequently she has not suffered any detriment in exchange for his promise. 

Justice Hudson held that even if it could be said that Helga was under a duty to cohabit with the respondent, there was no remedy in law which would compel her to do so. Thus, in exchange for his promise the husband, from a practical viewpoint, obtained something more advantageous than the ‘right of cohabiting with his wife’ which he could not enforce; Helga suffered a detriment by ‘placing herself in apposition which she could not have been compelled to occupy’ – there was good consideration.

Note: The Court also found that there was intention to create legal relations (distinguished Balfour v Balfour), but Helga's claim failed because there was no note or memorandum sufficient to satisfy the formality requirements in [s 126] of the Instruments Act 1958at the time proceedings commenced.

 

Facts

Helga Popiw left her husband and, in an effort to entice her back, her husband orally promised that if she returned he would put the title to the home in their joint names. Helga returned (for a few weeks only) and left after a dispute. Was she entitled to enforce her husband’s promise?

 

Argument (on issue of consideration)

Helga's husband argued that Helga was already under a duty to return to cohabit with him and consequently she has not suffered any detriment in exchange for his promise. 

'The objection that the act of the applicant in returning to cohabitation did not amount to a valid consideration for the respondent's promise was founded on the view that the applicant was already under a duty as the wife of the respondent to return to cohabitation and this being so it could not be said that by the act of the applicant she suffered any detriment or that the respondent gained any advantage in exchange for his promise.' [[1959] VR 197 at 198]

 

Judgment (Justice Hudson)

On issue of consideration

There was valid consideration.

Even if it could be said that Helga was under a duty to cohabit with the respondent, there was no remedy in law which would compel her to do so. 

'Although it may be true to state that the applicant was under a duty to cohabit with the respondent there was no remedy open to the respondent to compel the performance of that duty.' [[1959] VR 197 at 199]

In exchange for his promise the husband, from a practical viewpoint, obtained something more advantageous than the 'right of cohabiting with his wife' which he could not enforce in law; Helga suffered a detriment by 'placing herself in apposition which she could not have been compelled to occupy' - this was good consideration: [[1959] VR 197 at 199]