Williams v. Williams [1957] 1 WLR 148, Court of Appeal
[The facts of the case are set out in the judgment of Denning LJ.]
Denning LJ
In the present 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 Apr. 25, 1945. They have no children. On Jan. 24, 1952, the wife deserted the husband. On Mar. 26, 1952, they signed the agreement now sued on, which has three clauses:
‘(1) The husband will pay to the wife for her support and maintenance a weekly sum of £1 10s. to be paid every four weeks during the joint lives of the parties so long as the wife shall lead a chaste life the fi rst payment hereunder to be made on Apr. 15, 1952.
(2) The wife will out of the said weekly sum or otherwise support and maintain herself and will indemnify the husband against all debts to be incurred by her and will not in any way at any time hereafter pledge the husband’s credit.
(3) The wife shall not so long as the husband shall punctually make the payments hereby agreed to be made commence or prosecute against the husband any matrimonial proceedings other than proceedings for dissolution of marriage but upon the failure of the husband to make the said weekly payments as and when the same become due the wife shall be at full liberty on her election to pursue all and every remedy in this regard either by enforcement of the provisions hereof or as if this agreement had not been made.’
So far as we know, the parties have remained apart ever since. On June 1, 1955, the husband petitioned for divorce, on the ground of his wife’s desertion, and on Oct. 12, 1955, a decree nisi was made against her. On Dec. 2, 1955, the decree was made absolute. In this action the wife claims maintenance at the rate of £1 10s. a week under the agreement for a period from October, 1954, to October, 1955. The sum claimed is £30 5s. 9d., which is the appropriate sum after deduction of tax. The husband disputes the claim, on the ground that there was no consideration for his promise. Clause 2, he says, is worthless and cl. 3 is unenforceable.
Let me first deal with cl. 3. It is settled law that a wife, despite such a clause as cl. 3, can make application to the magistrates or to the High Court for maintenance. If this wife had made such an application, the husband could have set up the fact of desertion as an answer to the claim, but he could not have set up cl. 3 as a bar to the proceedings. The clause is void, and as such is no consideration to support the agreement….
Now let me deal with cl. 2. The husband relies on the fact that his wife deserted him. If there had been a separation by consent, he agrees that the agreement would have been enforceable. In that case the husband would still be under a duty to maintain, and the sum of 30s. a week would be assumed to be a quantification of a reasonable sum for her maintenance having regard to her own earning capacity. The ascertainment of a specific sum in place of an unascertained sum has always been held to be good consideration. So long as circumstances remained unchanged, it would be treated by the courts as binding on her and she could not recover more from him…. In the present case the husband says that, as the wife deserted him, he was under no obligation to maintain her and she was not entitled to pledge his credit in any way. Clause 2 therefore gives him nothing and is valueless to him. . . . Now I agree that, in promising to maintain herself whilst she was in desertion, the wife was only promising to do that which she was already bound to do. Nevertheless, a promise to perform an existing duty is, I think, sufficient consideration to support a promise, so long as there is nothing in the transaction which is contrary to the public interest.
Suppose that this agreement had never been made, and the wife had made no promise to maintain herself and did not do so. She might then have sought and received public assistance or have pledged her husband’s credit with tradesmen; in which case the National Assistance Board might have summoned him before the magistrates, or the tradesmen might have sued him in the county court. It is true that he would have an answer to those claims because she was in desertion, but nevertheless he would be put to all the trouble, worry and expense of defending himself against them. By paying her 30s. a week and taking 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 judge, and I must say that it appeals to me also.
There is another ground on which good consideration can be 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. 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. 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.
Hodson and Morris LJJ delivered concurring judgments but they found for the plaintiff on the basis that clause 2 of the agreement provided consideration for the defendant’s promise to maintain her on the basis that her right to maintenance was not forfeited but only in suspension and would be resurrected in the event of her making an offer to return to the defendant.