Macmahon v Macmahon ;Purser v Purser

• Jurisdiction: Ireland
• Judgment Date: 13 June 1913
• Date: 13 June 1913
• Court: Court of Appeal (Ireland)

Macmahon

and

Macmahon.

Purser

and

Purser (1)

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1913.

Contract — Public policy — Husband and wife — Separation deed — Agreement providing for immediate reconciliation and for the contingency of future separation.

An agreement entered into between a husband and a wife while living separate and apart, providing for their resuming cohabitation, and further that, in the event of a future separation, provision should be made for the wife, is legal and enforceable.

The defendant in MacMahon v. MacMahon (2), and the defendant in Purser v. Purser (3), having appealed to the Court of Appeal, the two appeals were heard in immediate succession. The question in each case was, whether an agreement entered into between a husband and wife, whilst living apart, providing for a reconciliation and the resumption of cohabitation, and also containing terms that in case of a future separation separate maintenance should be provided for the wife, was enforceable, or whether such an agreement is void as being against public policy.

H. Wilson, K.C., and P. A. O'C. White, for the appellant, in MacMahon v. MacMahon (2):—

We contend that this contract was invalid as providing for a future separation, and thereby contravening the policy of the law. The principle is stated in Pollock on Contracts (8 ed. p. 325): “As to all agreements or provisions for a future separation, whether post-nuptial, or ante-nuptial, and whether proceeding from the parties themselves, or from another person, it remains the rule of law that they can have no effect. If a husband and wife who have been separated are reconciled, and agree that, in case of a future separation, the provisions of a former separation

deed shall be revived, this agreement is void.” See also Macqueen on Husband and Wife, c. xii, s. 3. The authorities on the point are clear: see Durant v. Titley (1). In Westmeath v. Salisbury (2) the judgment of Lord Eldon is explicit that an agreement providing for future separation is void. In Cocksedge v. Cocksedge (3) it was held that a covenant before marriage that the husband should make a certain provision for his wife in case of separation taking place between them was invalid. Bateman v. Countess of Rosse (4) shows that a reconciliation entirely does away with the effect of a separation deed. Lord Eldon there laid down that a husband and wife could not be permitted to make an agreement to hold good whenever they chose to live apart. In Cartwright v. Cartwright (5) Knight-Bruce, L.J., said, “I apprehend the theory of the law to be, that a man and his wife cannot live in a state of separation from each other (in the only sense, or in either of the only senses, in which that term can possibly be understood here) without some failure on the part of one or both in the performance of duties in the fulfilment of which society has an interest. Here certain rights in property have been conferred by an ante-nuptial settlement on the intended husband and the intended wife, in the event of the marriage taking place, subject to a proviso for materially varying those rights in a manner favourable to the husband if a separation, by reason of any disagreement or otherwise, should take place. Understanding that term as I have already stated, I am of opinion that such a proviso is against public policy, and therefore void.” The decision of Page Wood, V.-C., in H. v. W. (6) is to the same effect. The effect of these cases cannot be got rid of by suggesting that the primary object of the deed was to effect a reconciliation. That cannot validate a covenant to take effect only in case of future separation. Wilson v. Wilson (7) only recognized the validity of an agreement for an immediate, not a future,separation. The decision in Harrison v. Harrison (8) cannot be pressed beyond the facts of that particular case. Vandergucht v. De Blaquiere (1) will also be relied on by the other side; but the precise point did not arise there, and the words of Lord Cottenham, at p. 244, were merely an interlocutory expression of opinion.

[They also contended that no notice in writing was served by the wife on the husband.]

Ronan K.C.,, and J. C. Meredith, for the respondent in MacMahon v. MacMahon (2):—

It is settled law that an agreement entered into between a husband and wife making provision for the wife while living apart from the husband, is perfectly valid. Is it possible to contend that, if a man and his wife are unable to agree, the law will allow them to make an arrangement for a perpetual separation, but will not allow them to arrange to come together on terms? It is an abuse of language to call this a separation deed; the object of the deed was to end the separation, and it had that effect. The argument based on the alleged policy of the law accordingly fails. The Court should in any case be slow to decide the question upon the ground of public policy: see the judgment of Lord Halsbury in Janson v. Driefontein Consolidated Mines Limited (3), and that of Lord Davey, at p. 500, where the latter Judge said, “Public policy is always an unsafe and treacherous ground for legal decision, and in the present case it would not be easy to say on which side the balance of convenience would incline.” In Vandergucht v. De Blaquiere (4) Lord Cottenham referred to the difficulty of endeavouring to reconcile the different authorities on this subject, so that at that date, in 1839, there was no fixed rule as to what the policy of the law was, notwithstanding Lord Eldon's dictum in Westmeath v. Salisbury (5). Lord Cottenham, however, in Vandergucht'sCase (1) was clearly of opinion that an agreement such as the present, being “the price and condition of terminating a state of separation,” was valid. It is to be observed moreover that the policy of the law

changes from time to time. In Evanturel v. Evanturel(1), Sir James W. Colvile said, “It was well observed during the argument that the determination of what is contrary to the so-called ‘policy of the law’ necessarily varies from time to time. Many transactions are upheld now by our own Courts which a former generation would have avoided as contrary to the supposed policy of the law. The rule remains, but its application varies with the principles which, for the time being, guide public opinion.” There is nothing in respect of which there have been greater changes, both in the law and in the state of public opinion, than the status of a married woman. In Lord Eldon's time a married woman was the servant of her husband; he could give her “moderate correction,” and “restrain her by domestic chastisement”: see Christian's edition of Blackstone's Commentaries, at p. 444. Lord Eldon's own views as to the rights of a married woman are shown by his judgment in Westmeath v. Westmeath (2). Prior to the Married Women's Property Acts, a married woman could not during coverture acquire a legal right to personal property. Before the passing of the Matrimonial Causes Act 1884 (47 & 48 Vict. c. 68), an attachment would be issued against a wife who refused to obey a decree for restitution of conjugal rights: see Weldon v. Weldon (3). The modifications which the law as to separation agreements had undergone were referred to in 1888 by Lindley, L.J., in M'Gregor v. M'Gregor (4). It was there held that a separation agreement providing for payment of a weekly sum for the maintenance of the wife was binding; see also Hunt v. Hunt (5). In Rodney v. Chambers (6) a covenant by a husband to pay an annual sum by way of separate maintenance for his wife, in case of future separation, was held valid. In Hope Johnstone v. Hope Johnstone (7), where a wife was given an interest in settled property so long as she continued to be the cohabiting wife of the settlor, or his widow, on the determination of which trust the husband was to take an interest in the settled property, it was held that the restriction on the wife's interest was valid, Kekewich, J., being of opinion that the provisions were intended, as are those in the present case, “rather to secure the continuance of cohabitation that to encourage a severance.” See also Marlborough v. Marlborough (1). The suggestion that the reconciliation, when effected, put an end to the provisions of the deed is met by Nicol v. Nicol (2), where, at p. 529, Bowen, L.J., points out that the deed will only be put an end to “so far as the language of the deed, properly construed by the light of surrounding circumstances, shows that its provisions were only intended to take effect whilst the separation lasted.” Here it is clear that the intention of the parties was that a reconciliation should take place, but that if the wife should subsequently be compelled again to part from her husband, she should be provided for. There is nothing in that contrary to law, or opposed to public policy concerning marriage.

White in reply.

[In Purser v. Purser (3), P. Lynch, K.C., Norwood, K.C., and Hungerford appeared for the appellant, and Sergeant Matheson, K.C., and The Hon. C. Atkinson for the respondents. The arguments were the same as before Ross, J., ante, p. 422.]

Palles, C.B.:—

The principal question on the appeal in the first of these cases is, whether an annuity of £200 a year (reducible, in the events which have happened, to £100 a year), charged on certain lands in the county of Clare by a deed of 7th May, 1901, and thereby made payable to a trustee for the sole and separate use of the plaintiff, without power of anticipation, during the joint lives of herself and her husband, if they shall so long live separate from each other, and the plaintiff shall duly observe and keep the covenants on her part contained in the deed, and continue to lead a chaste and temperate life to the reasonable satisfaction of her husband, became payable to her by reason of a separation...