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High Court of Australia |
BROOKS v. BURNS PHILP TRUSTEE CO. LTD. [1969] HCA 4; (1969) 121 CLR 432
Matrimonial Causes - Contract
High Court of Australia
Kitto(1), Taylor(2), Menzies(3),Windeyer(4) and Owen(5) JJ.
CATCHWORDS
Matrimonial Causes - Alimony and maintenance - Deed of settlement between husband and wife - Covenant by wife to accept terms of deed in settlement of all claims - Void as against public policy - Covenant by husband to make weekly payments to wife - Whether severable - Approval of deed by court making decree of divorce - Covenant by husband not thereby rendered enforceable.Contract - Public policy - Covenant to oust jurisdiction of court - Validity - Severability of other covenants - Estoppel by conduct.
HEARING
Sydney, 1968, November 14;DECISION
1969, March 5.2. There was a recital in the deed that the wife had indicated her intention to apply to the Court for an order for alimony pendente lite and, in the event of obtaining a decree absolute, to apply for permanent alimony. The petition was heard the next day. The deed was produced to the Court, and the Court made no order as to alimony or maintenance but expressly approved of the deed. I do not think it is correct to infer that the only purpose which the parties had in view with respect to the production of the deed to the Court was that of fulfilling the requirement of candour and obviating any suspicion of collusion. In view of the recital it seems to me that they intended the Court to exercise its jurisdiction as to alimony and maintenance, and contemplated that it would either make an order for the agreed payments (limited, necessarily, to the joint lives of the parties) or decide that the terms of the deed made proper provision for the wife and therefore made no order. The judge's approval of the deed implied, I think, a decision to make no order as to alimony or maintenance. (at p437)
3. If the wife had not bound herself by such an obligation as cl. 2 imposed upon her it might have been possible, in view of the imminence of her intended application to the Court for alimony pendente lite and permanent alimony, to infer that the deed was delivered by the husband in escrow, so as to have no operation unless and until the Court should have approved of it in the sense of making an order in accordance with clause 1 (a) and (b) or deciding to make no order as to alimony or maintenance at all ; for in order to decide whether such an inference should be drawn "you are to look at all the facts attending the execution - to all that took place at the time, and to the result of the transaction" : per Parke B. in Bowker v. Burdekin [1843] EngR 277; (1843) 11 M & W 128, at p 147; [1843] EngR 277; (152 ER 744, at p 751) . But cl. 2 was obviously intended to operate immediately and unconditionally, and according to its plain meaning it bound the wife not to ask the Court for more than the terms of the deed provided and not to take more by virtue of any order that the Court might see fit to make. Thus its operation, if it was valid, was to nullify as between the parties the Court's discretion as to alimony and maintenance by substituting the agreement of the parties for the opinion of the judge as the determinant of the amount the wife should be entitled to receive. It is true, as cl. 3 shows, that the wife remained at liberty to ask the Court to exercise its jurisdiction to the extent of ordering payment of the agreed weekly amounts as permanent alimony, and cl. 2 therefore cannot be described as purporting to oust the jurisdiction completely; but it did purport to oust the jurisdiction to award more than the agreed amounts. As Hyman v. Hyman (1929) AC 601 and Bennett v. Bennett (1952) 1 KB 249 demonstrate, the Divorce Court wuld refuse to treat such a covenant as binding, and any other court would refuse on the ground of public policy to enforce it. (at p438)
4. Clause 2 was therefore devoid of legal effect, and the question arises whether the covenant in cl. 1 (b) for payment of the weekly amount during the life of the wife (which is the covenant in question in these proceedings) stands as if cl. 2 were simply struck out of the deed, or is inoperative because of the invalidity of cl. 2. This is a question of the true meaning of par. (b) of cl. 1 considered in the context which cl. 2 provides. I do not think it is possible to read the document as a whole without perceiving that the intention was to substitute a limited liability in covenant for every other liability of the husband in respect of alimony or maintenance. This means that the husband's covenants in pars. (a) and (b) of cl. 1 and the wife's covenant in cl. 2 were intended to be the obverse and reverse of the one coin, to operate reciprocally or not at all. Questions of severability are often difficult, and tests that have been formulated as useful in particular classes of cases are not always satisfactory for cases of other kinds ; but in some cases - and I think this is one - the intended reciprocity of obligation between promises is sufficiently clear to necessitate an inference that the legal validity of each promise is a condition of the operation of the other. Accordingly I am of opinion that cl. 1 (b) failed to take effect as a source of legally enforceable obligation. (at p438)
5. The case comes before us as an appeal from a decretal order by which Street J. in the Supreme Court of New South Wales declared that the wife is not entitled as against the estate of the husband (now deceased) to be paid as from his death a weekly amount for her life in accordance with cl. 1 (b) of the deed. In my opinion his Honour's decision was right and the appeal should be dismissed. (at p438)
TAYLOR J. By deed dated 11th December 1950 it was recited that the appellant, then the wife of John Henry James Brooks, had issued out of the Supreme Court of New South Wales in its matrimonial causes jurisdiction a petition for judicial separation from her husband, that such petition had been duly served, that an appearance had been entered, that the petition had been amended by substituting a prayer for dissolution of the marriage in place of the prayer for judicial separation, that the petition had been reserved, that no appearance or answer had been filed following the reconstitution of the suit and that the appellant had indicated her intention to apply to the Court for an order for alimony pendente lite and, in the event of obtaining a decree absolute, to apply for permanent alimony. Thereafter the deed witnessed that the husband "for himself his executors administrators and assigns" covenanted (a) that he would pay to his wife the sum of 13pounds .7s. Od. per week until the granting of the decree absolute or until dismissal of the petition ; (b) that as from the granting of the decree absolute he would during the life of his wife pay to her the sum of 13pounds .7s. Od. per week, such payments to be in advance on the last day of each month ; (c) that he would assign to his wife two specified policies of assurances and all moneys assured by or recoverable under the said policies whereupon the weekly rate of payment should be reduced to 12pounds .10s. Od. ; (d) that he would give and make over to his wife all and singular the furniture and household effects and all other movable effects in their former home with the exception of certain specified articles ; (e) that he would pay to his wife on the signing of the deed the sum of 235pounds .16s.7d.; and (f) that he would pay to the wife's solicitors their costs of and incidental to the deed. On her part the wife covenanted that she would accept the terms provided by the deed in full settlement of all claims against her husband for alimony and maintenance of any description. Finally by cl. 3 the husband, in order to secure to the wife the weekly payments therein provided for, undertook whenever required so to do by the wife to consent to an order for permanent alimony being made in the same proceedings for the said weekly payments and that he would not at any time make any application for a reduction or suspension of such weekly payments. (at p439)
2. No order for permanent alimony was ever sought or made and, the husband having died on 27th October 1964, his executors instituted a suit to have determined the question whether the appellant is entitled to monthly payments pursuant to cl. 1 (b) of the deed. The learned judge of first instance, upon the authority of Bennett v. Bennett (1952) 1 KB 249 ; Shaw v. Shaw (1965) 66 SR (NSW) 30 ; and Duncan v. Somlai (1962) NZLR 849 , held that she was not and this appeal is brought from the order disposing of the suit. (at p439)
3. The problem in the case arises because of the presence in the deed of the appellant's covenant (2) "that she will accept the terms provided by this Deed in full settlement of all claims against the husband for alimony and maintenance of any description". Prima facie, at least, such a covenant purported to oust the jurisdiction of the Court to make an order or orders with respect to alimony in the cause then pending and is, therefore, unenforcealbe ; it is against public policy to permit such a covenant to operate and, though in this sense unlawful, its unlawfulness is not of a quality which brings down the whole instrument. Accordingly, covenants which are severable from such unenforceable covenants will survive. (at p440)
4. However, it is the appellant's contention that her covenant is not contrary to public policy and this, as I understand the argument, rests upon the ground that, in effect, the deed was subject to the approval of the Court and that when the decree nisi was made on the day following the execution of the deed the Court purported to approve of the deed. This, it is said, is shown by a recital in the decree nisi to the effect that "the Deed of Settlement" had been approved. (at p440)
5. I find myself quite unable to assent to the proposition that the deed was subject to the approval of the Court. There is not the slightest doubt that it was intended to operate from the time of its execution and delivery and to continue to operate thereafter whether or not its existence and terms had been disclosed to the Court. Probably, when one bears in mind the fact that it was executed on the day before the decree nisi was made and regard is had to what was the usual practice in the matrimonial causes jurisdiction, the parties intended to disclose the deed to the Court at the hearing but this is far from saying that it was subject to the approval of the Court or that its operation was conditional upon such approval being obtained. (at p440)
6. Again it is a matter of some difficulty to see how the validity of the
appellant's covenant could have been saved, either by
a clause suspending the
operation of the deed until it was approved by the Court, or, by the approval
which according to the decree
nisi was in fact given to it. At that time the
Court had no power to sanction or approve agreements of the character under
consideration
so as to clothe them with a validity which they did not
otherwise possess. The statement is made by Denning L.J. (as he then was)
in
Bennett v. Bennett (1952) 1 KB, at p 262 that :
"If the parties do not oust the jurisdiction of the DivorceBut from his suggestion as to the method by which the sanction of the Court might be obtained to an agreement to pay maintenance it clearly enough appears that what his Lordship had in mind in such a case was, not a procedure by which the validity and effectiveness of an agreement might be preserved or reinstated, but one by which obligations under an order of the Court might be substituted for contractual obligations. (at p441)
Court, but preserve it by making their agreement subject to
the sanction of the court, then, once it is sanctioned, it is
valid."
7. However observations in Shaw v. Shaw (1965) 66 SR (NSW) 30 make it clear that the practice of placing agreements of the kind now in question before the Court grew out of a proper desire to make a frank disclosure of all relevant dealings between the parties in matrimonial causes and to allay or dispel any suggestion of collusion. There is no reason to suppose that the deed in this case was placed before the Court for any other purpose and the approval which the decree nisi evidenced must be understood in this context. That is to say, it is impossible to regard the approval of the Court as purporting to render effective a covenant which was otherwise unenforceable. Particularly is this so when it is borne in mind that it was trite law that the Court had no such power. (at p441)
8. Finally we mention the argument that the deed did not purport to oust the jurisdiction of the Court because cl. 3 thereof specifically contemplates that the wife shall be free to make an application for alimony. No doubt this is so but cl. 3 further contemplates that if she does make an application she shall not be at liberty to obtain an order for any greater sum than that specified in the deed and that any such order shall be immutable. (at p441)
9. We are, therefore, left with the question of whether a simple covenant by a wife who has lodged a petition for dissolution of marriage that she will accept the terms provided by the deed in full settlement of all claims against her husband for alimony and policy and, secondly, whether, if it is, the husband's antecedent covenant to pay a stipulated sum to his wife during her life is also unenforceable. For an affirmative answer to the first proposition it is unnecessary to go beyond the decision in Hyman v. Hyman (1929) AC 601 and Bennett v. Bennett (1952) 1 KB 249 . But it is contended that these two decisions are in conflict concerning the second proposition. It is true that in Hyman v. Hyman (1929) AC 601 the House of Lords, whilst holding void a covenant by a wife not to take proceedings against her husband to compel him to allow her alimony or maintenance beyond the provision made for her by a deed of separation, seems to have accepted that the husband's covenant to make weekly payments was valid and enforceable whilst in Bennett v. Bennett (1952) 1 KB 249 it was thought that the fact that the wife's covenant to consent to a dismissal of her application for maintenance and not to present any further petition for maintenance was void also resulted in the invalidation of her husband's covenant to pay a stipulated annuity. But quite apart from the fact that the second proposition was not in question in Hyman v. Hyman (1929) AC 601 there were fundamental differences between the two cases. In the earlier case what was in question was the validity of a wife's covenant in a deed of separation whilst, in the later case, the covenants which were in question were contained in a deed executed after the institution by the wife of a suit for dissolution of marriage. The particular problem was, of course, the effect upon the husband's covenant to pay an annuity to his wife of the conclusion that a reciprocal covenant on the part of the wife to accept the provision made by the deed "in full satisfaction of all rights and claims" of the wife and her children in respect of alimony, maintenance or secured provision was void. (at p442)
10. It was suggested in argument that the effect which a void promise expressed in a contractual instrument will have on the rest of the contract will vary according to whether it is contained in a deed or in a simple contract. But the problem of severability is the same in either case ; fundamentally the question is one of intention to be gathered from the instrument itself : Fitzgerald v. Masters [1956] HCA 53; (1956) 95 CLR 420 and Whitlock v. Brew [1968] HCA 71; (1968) 118 CLR 445 . There can, of course, be no doubt that if the parties to either a deed or simple contract were expressly to declare their intentions as to what consequences should follow upon the invalidation of a particular term effect would be given to the intention expressed provided, of course, the invalidation of the term meant merely that it was void. It may be that in the case of a simple contract the necessity for consideration may introduce an additional element to be taken into account (cf. McFarlane v. Daniell (1938) 38 SR (NSW) 337 ) but, as will appear, this is a theoretical rather than a practical possibility and, speaking generally, the problems of what intentions should be imputed to the parties and how these should be resolved are common to both forms of instruments. (at p442)
11. In Bennett v. Bennett (1952) 1 KB 249 counsel for the appellant conceded that his client's - the wife's - covenant was unenforceable and the ground upon which the Court of Appeal held the husband's covenant to be unenforceable was that the wife's covenant constituted the sole consideration for it and that the covenants were not independent or severable (see per Lord Somervell (1952) 1 KB, at pp 254, 258 and per Lord Denning (1952) 1 KB, at pp 260, 261 ). Hyman v. Hyman (1929) AC 601 , on the other hand, was, as I have already pointed out, concerned with a deed of separation where the consideration for the husband's covenant consisted of several promises on the part of the wife only one of which was void. That promise clearly was divisible from her other covenants which it might well be thought constituted the "substantial" or "main" consideration for the husband's covenant. As a consequence her husband remained bound by his covenant. The Court of Appeal did not fail to observe this point of distinction between the two cases and it was the subject of discussion in that case (see also Goodinson v. Goodinson (1954) 2 QB 118 ; Williams v. Williams (1957) 1 All ER 305 ; O'Loughlin v. O'Loughlin (1958) VR 649 and Duncan v. Somlai (1962) NZLR 849 ). (at p443)
12. These observations I believe make it clear that there is no conflict between the decisions in Bennett v. Bennett (1952) 1 KB 249 and Hyman v. Hyman (1929) AC 601 and also serve to indicate that the husband's covenant in the present case cannot stand. In Bennett v. Bennett (1952) 1 KB 249 the Court of Appeal took the view that where the entire consideration for one person's covenant is a covenant by the other party which is held to be void there can be no severance. This, it seems to me, is entirely reasonable for each in relation to the other is a quid pro quo and upon the failure of one of the covenants the other cannot be allowed to stand. This seems to be entirely consistent with the fourth rule appearing in the notes to Pordage v. Cole (1607) 1 Wms Saund 319: (85 ER 449) and see also Oxford v. Provand (1868) LR 2 PC 135, at p 156 though there the problem under consideration was not entirely the same. Here, of course, the appellant's promise was the sole consideration for the husband's covenant and although the terms of the deed did not preclude her obtaining an order they did, in fact, purport to fix the amount of alimony which she might have obtained at an agreed and immutable figure. Accordingly the husband's covenant could not be enforced against him in his lifetime. Nor, notwithstanding that the appellant's promise is now spent since an application for alimony is not now competent, is it enforceable against his executors. (at p443)
13. Finally I mention that counsel for the appellant sought by invoking the principles of estoppel to overcome the difficulty with which he was faced. I must confess that I have some difficulty in grasping the point which counsel wished to make but in the end it emerged that the contention was that the fact that the husband during his life paid amounts pursuant to his covenant was tantamount to a representation that the approval given to the deed by the Divorce Court was effective to invest it with complete validity and that his personal representative should not now be permitted to allege the contrary. But in the circumstances of the case it is not possible to attribute any such representation to the husband. Nor, in my view, would it matter if it were for I do not see it as a representation founding an estoppel or, indeed, any evidence that it was because of any such circumstance that the appellant refrained from obtaining an order of the Court. Further I am unable to see how the application of the principles of estoppel inter partes can operate to preclude a Court from declaring void a covenant which is, in fact, contrary to public policy. (at p444)
14. I would dismiss the appeal. (at p444)
MENZIES J. On 11th December 1950 a deed was executed by the appellant, H. M.
Brooks, and her husband, J.H.J. Brooks, now deceased,
in which it was recited
that there was pending in the Supreme Court of New South Wales a petition by
the wife against the husband
for dissolution of marriage and that "the wife
has indicated her intention to apply to the Court for an order for alimony
pendente
lite and in the event of obtaining a decree absolute to apply for
permanent alimony". By the deed the husband for himself and his
executors
covenanted by cl.1 of the deed:
"(a) That he will pay to the wife the sum of Thirteen poundsProvision was made for the adjustment of this amount in certain contingencies and it is common ground, that, if payment is now to be made, the sum is $25.00 per week. (at p444)
seven shillings (13pounds.7.0) per week until the granting of
the Decree Absolute or until dismissal of the said petition ;
(b) That as from the granting of the Decree Absolute he
will during the life of the wife pay to her the sum of
Thirteen pounds seven shillings (13pounds.7.0) per week."
2. The wife by cl. 2 of the deed covenanted as follows:
". . . that she will accept the terms provided by this DeedClause 3 of the deed was as follows:
in full settlement of all claims against the husband for alimony
and maintenance of any description."
"In order to secure to the wife the weekly payments herein
provided for the husband whenever required so to do by the
wife will consent to an order for permanent alimony being
made in the said proceedings for the said weekly payments
AND will not at any time make any application for a reduction
or suspension of such weekly payments." (at p445)
3. By the deed the husband also assigned to the wife two policies of
insurance on his life and gave to the wife the furniture and
household effects
in a particular flat except specified articles as to which it was provided
that "shall remain the absolute property
of the husband". The husband also
promised to pay the wife 235pounds .16s. 7d. and to pay the costs of the deed.
(at p445)
4. There is no doubt that the deed came into operation upon its execution. The day after its execution the petition was heard and an order nisi for the dissolution of the marriage was granted. This order contained, inter alia, this recital, viz., his Honour "having approved the deed of settlement". This, it is common ground, was a reference to the deed between the parties dated 11th December 1950. The deed with which we are concerned was therefore approved by the judge of the Divorce Court. (at p445)
5. During his life the husband paid to the wife the covenanted weekly payment and no application was made by the wife under cl. 3. Upon the death of the husband his executors, the present respondents, commenced proceedings in the Supreme Court of New South Wales to have determined the question whether the appellant - the widow of the deceased - is entitled, until her death, to the weekly sums covenanted to be paid to her. Street J. answered the question "No". His Honour decided that (1) the covenant by the wife to accept the terms of the deed "in full settlement of all claims against the husband for alimony and maintenance of any description" was void as tending to preclude resort to the jurisdiction of the Divorce Court; (2) that the covenant by the husband to pay the weekly sum, being inseverable from the void covenant, was itself unenforceable. In so deciding the learned judge followed Bennett v. Bennett (1952) 1 KB 249 ; Shaw v. Shaw (1965) 66 SR (NSW) 30 ; Whittle v. Whittle (1965) 66 SR (NSW) 141 and Duncan v. Somlai (1962) NZLR 849 . (at p445)
6. It is well established that a covenant by a wife not to invoke the jurisdiction of the Court to obtain alimony or maintenance in divorce proceedings is contrary to public policy and void. The first question to be resolved here, therefore, is whether the wife's covenant under cl. 2 of the deed is of that description. Had cl. 2 stood alone there would have been no escape from the conclusion that it is. It would have constituted a covenant by the wife to accept, upon the making of a decree nisi or decree absolute, the terms of the deed instead of seeking an order for alimony from the Divorce Court. Clause 2 must, however, be read with cl.3 and so read I cannot regard cl. 2 as simply ousting the jurisdiction of the Court. By cl. 3 provision is made for the husband consenting to an order of the Divorce Court for alimony. It, of necessity, contemplates an application by the wife to the Court for alimony. It seems to me that if the wife had made such an application the Court would not have treated cll. 2 and 3 as void; it would, according to the discretion conferred upon it by statute and after consideration of all the circumstances including the provisions of the deed, have made or refused to make an order, and had it decided to make an order it would have done so either upon the terms of the deed or upon some other terms. Furthermore, any order made by the Court would have been subject to the Court's statutory power of variation. The Court would not have regarded itself as fettered by cll. 2 and 3 in dealing with an application made to it by the wife, but that is an altogether different matter from treating the clauses as entirely void. Moreover, an application by the wife for alimony under cl. 3 would not have been in breach of her covenant in cl. 2. Clause 3 assumes the making of such an application. In short cl. 3 denies that cl. 2 has an operation which would bind the wife to accept the husband's covenant in lieu of a court order for alimony. (at p446)
7. It must, I think, be recognized that to regard cll. 2 and 3 in the way in which I have indicated is to depart from observations made by Denning L.J. in Bennett v. Bennett (1952) 1 KB 249 . Accordingly it is necessary to examine closely what was said and to do so in the light of what was said in Hyman v. Hyman (1929) AC 601 . (at p446)
8. In Hyman v. Hyman (1929) AC 601 the effectiveness of a covenant by a
husband to pay maintenance or alimony, notwithstanding the
presence in the
deed of a covenant by the wife not to resort to the Court for maintenance or
alimony, was, I think, clearly recognized
by four members of the House whose
language indicated that in their Lordships' opinion the rights of a wife under
such a covenant
by a husband would be taken into account in determining what
alimony the Divorce Court would award the wife upon an application made
by her
in disregard of her covenant to accept the husband's covenant in lieu of
alimony. Lord Atkin, for instance, said (1929) AC,
at p 629 :
"In my view no agreement between the spouses can preventSee too Lord Hailsham L.C. (1929) AC, at p 609 , Lord Buckmaster (1929) AC, at p 625 and Viscount Dunedin's agreement with the opinion of Lord Buckmaster. In Hyman v. Hyman (1929) AC 601 the decision of the House was that the wife's covenant in a separation deed made ten years before a divorce did not preclude her from petitioning the court for permanent maintenance, but the House did clearly recognize that, in that case, the husband's covenant still stood. (at p447)
the Court from considering the question whether in the
circumstances
of the particular case it shall think fit to order the
husband to make some reasonable payment to the wife,
'having regard to her fortune, if any, to the ability of her
husband and to the conduct of the parties'. The wife's
right to future maintenance is a matter of public concern,
which she cannot barter away. This is not to say that in any
particular case the Court must make an order; still less that
in this case it must do so. I could well understand the Court
coming to the conclusion that the parties' pre-estimate of
the wife's reasonable needs was judicious, and that the
allowance,
continuing as it does after the husband's decease, and
being independent of any fluctuations in the amount of his
fortune, needed no supplement. But the present objection of
the husband to the Court considering the matter at all in my
opinion cannot prevail."
9. In Bennett v. Bennett (1952) 1 KB 249 what was said in Hyman v. Hyman
(1929) AC 601 was distinguished and it was pointed out
by Somervell L.J.
(1952) 1 KB, at p 251 that,
"The House did not have before it the question whetherNevertheless, as Somervell L.J. recognized (1952) 1 KB, at p 259 , both Lord Hailsham L.C. and Lord Atkin had used words which suggest "that the husband would remain bound and that any future application by the wife could only be for an additional sum". His Lordship added:
the existence of this covenant voided the whole deed, so that
the husband could, as he seeks to do here, have repudiated
liability on his covenants."
"The passages referred to above indicate what I haveDenning L.J. went much further and said (1952) 1 KB, at p 262 :
accepted, namely, that in this area the unenforceability or
'illegality' is not of the kind which, however small a part of
the consideration it may be, necessarily voids the whole
agreement. I do not think it would be right to regard these
observations as a final authority on a point which was not
before the House. The doctrine of severability being applicable
might well have prevented the whole agreement from being
regarded as void. The main subject of the agreement was the
separation. The possibility of divorce was remote and seemed
to depend on a change in the law. It might well, in these
circumstances, be held to be subsidiary and 'severable'."
"Any private agreement of the parties which purports to
make maintenance a debt enforceable at law must of necessity
impliedly oust the jurisdiction of the Divorce Court to fix it,
vary it or discharge it, and it is, by reason of that implication,
invalid, for the ouster goes to the whole consideration. There
is no consideration moving from the wife except an implied
promise to accept the named figure and not to ask for more,
and that is invalid, because it impliedly takes away the
jurisdiction
of the court to give her more. If her promise does not
bind her, then his should not bind him : Gaisberg v. Storr
(1950) 1 KB 107
;
Combe v. Combe
(1951) 2 KB 215
. Sometimes there may be an implied
promise by her to prosecute the divorce proceedings, but that
would be worse, for it would be collusion. In the present
case, however, the ouster is not merely by implication. It is
expressed in cl. 10 of the deed. That clause is invalid. It
forms the whole, or substantially the whole, consideration
for the husband's promise to pay the annuities. His promise
is therefore invalid." (at p448)
10. There are, I think with great respect, difficulties in accepting this
formulation of the law by Denning L.J., particularly when
regard is had to
what was said in Hyman v. Hyman (1929) AC 601 . Thus to accept his Lordship's
statement that "Any private agreement
of the parties which purports to make
maintenance a debt enforceable at law must of necessity impliedly oust the
jurisdiction of
the Divorce Court to fix it, vary it or discharge it, and it
is, by reason of that implication, invalid" would involve the rejection
of
what was said by the members of the House of Lords in Hyman v. Hyman (1929) AC
601 to the effect that the covenant to pay maintenance
stood. It would also
involve the rejection of the observations of Somervell L.J. already quoted to
the effect that the problem is
one of severability. If the law is correctly
expressed in the absolute language of Denning L.J. then even in a separation
agreement
supported by various considerations a covenant to pay maintenance or
alimony would be void because, if valid, it would create a debt
enforceable at
law. The actual decision in Bennett v. Bennett (1952) 1 KB 249 I accept; the
true rationale of the decision, which
Denning L.J. himself stated, I also
accept, viz. that if a covenant by a husband to pay a wife maintenance or
alimony is dependent
upon a void covenant by the wife not to resort to the
jurisdiction of the Court the husband's covenant is itself unenforceable. What
I cannot accept is the more fundamental proposition enunciated by Denning L.J.
which makes the proposition actually adopted and applied
quite unnecessary. It
is one thing to say that the husband's covenant falls because it is
inseverably linked with the wife's void
covenant ; it is, however, another
thing to say that any covenant by the husband to pay alimony is void because,
of itself and without
more, it ousts the jurisdiction of the Court by creating
a debt. The two propositions, indeed, cannot stand together for if the second
is correct the husband's covenant does not fall because of its dependence upon
the wife's void covenant. (at p449)
11. Having regard to the foregoing and to the terms of this deed, I have reached the conclusion that cl. 1 is not invalid either because it would create an enforceable debt or because it is linked with a void covenant made by the wife not to resort to the jurisdiction of the Court. It is, in truth, linked with the wife's covenant but that covenant is not, in the particular circumstances, void. It does not provide that the wife will accept the weekly payments in lieu of alimony ; it does provide that the wife will, in full settlement of all claims for alimony, accept "the terms provided by this Deed" including cl. 3 which requires the husband to consent to an order for alimony "in order to secure to his wife the weekly payments herein provided for" thus recognizing that the wife may, consistently with the deed, apply to the Court for an order for alimony. (at p449)
12. Had I reached the conclusion that cl. 2 is void I would have had to consider the other important questions that were argued. Taking the view which I do of cll. 2 and 3 it is, however, not necessary to go further. I would hold that the covenant in cl. 1 is valid and enforceable and would, therefore, allow the appeal. (at p449)
WINDEYER J. In my opinion this appeal should be allowed. Counsel for the respondents said that the position which he defended had been firmly entrenched by law. He conceded that it was, as he expressed it, "not ideal from the point of view of fairness". And clearly it is not. At one time the appellant could have applied to the Supreme Court in its matrimonial causes jurisdiction for an order for maintenance consequential upon divorce. She did not do so, being content with her husband's promise which he faithfully kept during his lifetime. (I shall throughout this judgment refer to him as the "husband", although of course that description is not accurate after the divorce.) It is now said that, because in the past she might have asked the Court to order him to pay her more than he had promised, she is not now to have what he promised. And this result it is said flows from the law's regard for public policy. This proposition recalls Lord Mansfield's remark in Holman v. Johnson [1775] EngR 58; (1775) 1 Cowp 341, at p 343 [1775] EngR 58; (98 ER 1120, at p 1121) . The result is "founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say". However, although a refusal by the husband to perform his promise on the ground that it was not binding would, using Lord Mansfield's phrase, have sounded very ill in his mouth, his executors, the respondents, are not to be reproached for the attitude they take. They wish to know where their duty lies. They are not to admit unfounded claims upon the estate they have to administer. (at p450)
2. The question is therefore where in this case does justice lie according to
law? The resolution of that question depends, I think,
on considerations which
are fundamental in one's ideas of the very nature of the common law and of the
force of precedents. A foray
deep into the territory of jurisprudence is not
necessary, but the case does seem to be one of the many in which pragmatism,
in a
philosophical sense, should enter into what it has become the fashion to
call legal conceptual thinking. Consequences and context
can determine the
meaning and denotation of particular words used to express concepts embodied
in a legal precept or principle, and
in that way determine the scope and
application of the precept or principle in a particular case. We should avoid
what Cardozo J.
in the New York Court of Appeals once described as "the
extension of a maxim or a definition, with relentless disregard of
consequences,
'to a dryly logical extreme'" : Hynes v. New York Central
Railroad Co. (1921) 17 ALR 803, at p 806; 231 NY 229, at p236 . That is
my
justification for quoting a remark of Professor Lord Lloyd in his recent work
The Idea of Law, at pp. 294, 295:
"Legal concepts like other symbols of man's creativity areThat applies to doctrines professedly founded and formulated on considerations of public policy, especially to the striking down of contracts as contrary to public policy. When this is done, not because there was a promise to do something the doing of which would be illegal or immoral, but because for some other reason it is a promise which the law will not enforce, then there is a conflict of policy. On one hand the economic doctrine, predominant in the nineteenth century, that bargains should be kept: on the other an exception that the particular agreement is one to which the law will not lend its aid, although the parties may keep it if they wish.
apt to possess a vitality of their own which may end by leading
their authors instead of being led by them."
3. Contravention of public policy as an invalidating factor in contract law has become a much discussed subject - in judgments and in writings by painstaking and learned authors, especially since Sir Percy Winfield's article "Public Policy in the English Common Law", Harvard Law Review, vol. 42 (1929), p. 76. Discussion has suffered, and become enlarged, by what Lord Radcliffe, in his extra-judicial contribution to this subject, has called its "unfortunate nomenclature": The Law and Its Compass, p. 57. I do not intend to go at length into the topic here. But, in explanation of the view I take of this case, it is necessary to state on which side in some aspects of a still-continuing controversy I take my stand. (at p451)
4. Every student of the law of contracts knows that "public policy is a very unruly horse, and when once you get astride it you never know where it will carry you". And since 1938 he has known too that the rider may find that his mount has foundered on "slippery ground" or in "treacherous ground". (at p451)
5. In In re Hope Johnstone (1904) 1 Ch 470, at p 474 , Kekewich J. said: "The
phrase most frequently used in argument was 'public
policy', but, following
the example of many eminent judges, I prefer 'the policy of the law'." Half a
century later Lord Merrivale
said in the case then before him:
"We need not talk about public policy. I sympathize(1931) P 63, at p 73 . (at p451)
with the view which has been expressed by many learned
judges as to the mischief veiling a legal procedure which
cannot be justified by direct authority upon the assumption
that it is required by the public interest. What is law, and
what is not law, are the real tests of public interest": L. v. L.
6. The House of Lords has said that it is not for courts to create new heads
of public policy. This warning was expounded by Isaacs
J. in this Court in
Wilkinson v. Osborne [1915] HCA 92; (1915) 21 CLR 89 . The proposition continues to excite
controversy among
those who doubt
whether the fertility of courts in the
nineteenth century has now given way to sterility, resulting from senility,
in
the common
law. But the distinction between creating
a new head of public
policy and defining the scope of heads already formulated
by judicial
decision
is perhaps verbal rather than
real. Sir Carleton Allen trenchantly remarked in
his Law in the Making, (7th ed.
(1964), p.
303, n. 2) that "the notion of
'heads'
or categories, settled once for all, in a matter like this, is quite
artificial
and, it is
submitted, unprofitable, except for convenience
of
arrangement and exposition". Nevertheless the influence of categories
continues.
They provide "pigeon holes", it is said, into
one of which an
agreement must fit if it is to be held invalid on the ground
of public
policy:
Monkland v. Jack Barclay Ltd. (1951)
2 KB 252, at p 265 . The pigeon hole for
this case is said to be labelled
"contracts
void as tending to oust the
jurisdiction of
the Court". This is a convenient phrase, but to my mind it can
be misleading.
It is misleading
first to ask does the phrase describe
a
particular contract, and if it does, then to condemn the contract. The correct
approach is,
I think, to look at what result would
actually flow from the
performance of the contractual promise in question to see
whether that
would
be a mischief from the point
of view of public policy. I adopt as applicable
to this case the considerations and
the distinction
expressed by Lord Haldane
in
Rodriguez v. Speyer Bros. (1919) AC 59, at p 77 , and what Lord Watson said
in Nordenfelt
v. Maxim Nordenfelt
Guns and Ammunition
Co. (1894) AC 535, at p
553 . These passages are too well known to need quotation. (at p452)
7. As far as I have discovered, the first appearance of the phrase "ousting
the jurisdiction of the court" was in 1746 in Kill v.
Hollister [1799] EngR 17; (1746) 1 Wils
KB 129 (95 ER 532) . It was there used in relation to a provision in an
insurance policy that all disputes
should
be referred to arbitration. With the
important limitation recognized in Scott v. Avery [1856] EngR 810; (1856) 5 HLC 811 (10 ER
1121) , it
is still true that the parties to a contract cannot remove disputes
as to their contractual rights
from the cognizance of the courts.
That is
because, as this Court has said:
"It is not possible for a contract to create rights and at the[1935] HCA 49; (1935) 53 CLR 643, at p 652 .
same time to deny to the other party in whom they vest the
right to invoke the jurisdiction of the courts to enforce them" :
Dobbs v. National Bank of A/asia Ltd.
8. It has been accepted throughout this case that the conclusion in the judgment appealed from depends upon the decision in Bennett v. Bennett (1952) 1 KB 249 , and upon treating that decision as a logical corollary of the decision in Hyman v. Hyman (1929) AC 601 ; and that that decision was founded on the principle that a contract to oust the jurisdiction of the courts is against public policy. (at p453)
9. A great many cases from Australian and English courts were cited to us in argument. I have read these, and others which seemed apposite. Having done my best to find my way through a forest of decisions with their tangled undergrowth of dicta, I confess I have been left remembering Gibbon's description of the lawyers in the age of the Antonines who "adopted from every system the most probable doctrines; but their writings would have been less voluminous had their choice been more unanimous. The conscience of the judge was perplexed by the number and weight of discordant testimonies". I shall not here go through all the cases. It is, I think, unnecessary to go further back than Hyman v. Hyman (1929) P 1; (1929) AC 601 , although there is much to be learnt from some of the earlier cases which were there cited. (at p454)
10. Hyman v. Hyman (1929) P 1 was a case which had the attention of six judges of the Court of Appeal (Lord Hanworth M.R., Scrutton, Lawrence, Greer, Sankey and Russell L.JJ.). In the House of Lords the decision of the majority of the Court of Appeal was upheld against the dissenting opinions of Lawrence L.J. and Russell L.J. The members of the House who heard the case were Lord Hailsham L.C., Lord Dunedin, Lord Shaw, Lord Buckmaster and Lord Atkin. The facts of the case were very different from the facts of this case. The judgments must be read with those facts in mind. A husband and wife separated in 1919. A deed of separation was executed. By this the husband covenanted, for himself and his executors and administrators, that he would pay immediately two lump sums to his wife, and that in addition he would pay her 20 pounds a week for her maintenance during her life: and she covenanted not to molest or disturb him or seek an order for restitution of conjugal rights or seek to compel him to allow her any alimony or maintenance further than the weekly sum of 20 pounds and the two lump sums already mentioned. The deed was thus a common form of a separation agreement; and, despite the hostility at one time of the Ecclesiastical Courts, such agreements, since the second half of the nineteenth century, had been recognized and treated as valid and enforceable. The question in the case was not whether the wife's covenant was valid as a clause in an agreement by which a husband and wife were to live separately, but what was its bearing upon her rights when their marriage was dissolved. When the deed was executed the husband was living in adultery with another woman ; and he continued to do so after the date of the deed. At that time a wife could not in England obtain a divorce on the ground of her husband's adultery. Only when a husband's adultery was aggravated by other misconduct was it a ground for divorce. This rule was not changed in England until 1923. Then by statute a husband's adultery without more was made a ground for divorce. In 1926 Mrs. Hyman, taking advantage of the changed state of the law, commenced proceedings for a divorce because of her husband's adultery. In January 1927 a decree nisi was pronounced, and within a month she filed a petition for permanent maintenance. In answer to this the husband set up the deed of separation. He did not contest that he and his executors and administrators were bound by his covenant to pay her the sum of 20 pounds a week. He contended only that she was bound by her covenant not to seek more than this by way of alimony or maintenance. The case turned on an issue of law thus raised. (at p455)
11. The majority of the judges in the Court of Appeal held that the wife's covenant in the deed of separation did not prevent her applying in the proceedings for an order for maintenance. Their Lordships gave differing reasons for arriving at this conclusion. In the argument for the wife three main reasons had been advanced for saying that her covenant did not stand in the way of her application in the divorce jurisdiction. They overlap but can be separately stated. In both the Court of Appeal and the House of Lords each found some judicial favour and support, and some also some quite distinct disfavour among those who nevertheless were agreed as to the ultimate result. Analysis and tabulation of the judgments might be an illuminating exercise for those who expect easily to find in every case one uncomplicated ratio decidendi. I think it would be unprofitable here. Nevertheless it is important to notice the three main propositions which were put for the wife. (at p455)
12. The first was that the separation agreement was to have effect only while the parties to it remained married : divorce terminated it, for it was something quite outside the contemplation of the parties when the deed was executed, divorce on the ground of a husband's adultery being then impossible. The doctrine of frustration of contracts by supervening events was referred to in support of this. (at p455)
13. The second argument was that, if upon its true construction, the deed was intended to be operative after a divorce, it was against public policy and void. (at p455)
14. Thirdly it was said that the wife's covenant could not deprive her of her statutory right to apply for maintenance. (at p455)
15. The first proposition depended on the peculiar facts of that case, which were quite different from those of this case. Here the deed was executed in contemplation of divorce. If the decision of the House of Lords had been entirely founded on the terms of the deed in that case and on its circumstances, that decision would not govern this case. But, although the argument based on these matters found some favour with some of the members of the House of Lords, it was not the main ground of their Lordships' decision that Mrs. Hyman was not precluded by her covenant from petitioning the Divorce Court for an order for maintenance. That conclusion stands on a broad foundation, and it is directly in point in the present case. In the second and third of the propositions which were put for the wife in Hyman v. Hyman (1929) AC 601 the words "public policy" were used. When invoked in relation to one of these propositions, public policy was a rule of the common law which, it was urged, would of its own force invalidate the wife's covenant in the deed. However, in relation to what was, as I read their Lordships' judgments, the main and decisive consideration, the public interest was simply an element in the determination of the nature of statutory rights. The decision that Mrs. Hyman could, notwithstanding her covenant, approach the Court was founded on rights given her by statute. (at p456)
16. When a statute creates and confers rights and imposes corresponding
duties, persons for whose benefit this was done may by contract
waive or
renounce their rights, unless to do so would be contrary to the statute. It
may be seen that it would be so, because of
an express prohibition against
"contracting out", or because the provisions of the statute, read as a whole,
are inconsistent with
a power to forgo its benefits: or the policy and purpose
of the statute may shew that the rights which it confers on individuals
are
given not for their benefit alone, but also in the public interest, and are
therefore not capable of being renounced. This has
been long recognized : see
Graham v. Ingleby [1848] EngR 92; (1848) 1 Ex 651, at p 656 [1848] EngR 92; (154 ER 277, at p 279) . In Davies
v. Davies
[1919] HCA 17; (1919) 26 CLR
348, at p 362 , Higgins J. expressed the general rule
when he said:
"Anyone is at liberty to renounce a right conferred by lawThat was the doctrine on which the final decision in Hyman v. Hyman (1929) AC 601 stands. Lord Hailsham said (1929) AC, at p 614 that
for his own sole benefit ; but he cannot renounce a right
conferred for the benefit of society."
". . . the power of the Court to make provision for a wifeLord Shaw, and Lord Buckmaster with whom Lord Dunedin agreed took much the same view. So did Lord Atkin: "The wife's right to future maintenance is a matter of public concern, which she cannot barter away." (at p457)
on the dissolution of her marriage is a necessary incident of
the power to decree such a dissolution, conferred not merely
in the interests of the wife, but of the public, and . . . the wife
cannot by her own covenant preclude herself from invoking
the jurisdiction of the Court or preclude the Court from the
exercise of that jurisdiction".
17. I have no doubt that these considerations apply to the provisions for maintenance in the Matrimonial Causes Act, 1899-1943, of New South Wales, the statute pursuant to which the divorce decree was pronounced in the present case and also to Pt VIII of the Matrimonial Causes Act 1959-1965 (Cth) and to other Australian statutes: Fishwick v. Fishwick (1950) VLR 30 . Their provisions must be read in the light shed by the maxim privatorum conventio juri publico non derogat. This phrase, derived from the Digest and quoted by Isaacs J. in Davies v. Davies (1919) 26 CLR, at p 355 , and by Lord Atkin in Hyman v. Hyman (1929) AC 601 , has been said by Asprey J., and in my view rightly, to be "the principle of the decisions in the line of authority exemplified by Hyman v. Hyman": Shaw v. Shaw (1965) 66 SR (NSW) 30, at p43 . Those who look for the law in Latin sentences may like to be reminded also of Coke's version: pacta privata juri publico derogare non possunt. (at p457)
18. Public policy, it is said, changes with the times. When considerations of public policy are a determinant of the scope of common law rights courts can, and, perhaps slowly, do, keep abreast of the times. But when considerations of the public interest are invoked for determining whether a right given by Parliament can be renounced, the case is different. That is because the nature and effect of rights created by statute are, speaking generally, to be determined at the date when the statute comes into force. They are not to be thereafter diminished or enlarged by changing views of what the public interest may be thought by judges to require. That is for Parliament to consider. It is for it, not the courts, to keep the law it has made abreast of the times. I appreciate the remarks Selby J. made in his judgment in Whittle v. Whittle (1964) 82 WN (Pt 1) (NSW) 31 , about a changed attitude to the proprietary rights and interests of spouses now reflected in the Matrimonial Causes Act 1959 (Cth), although for reasons I shall give later, I agree with the decision of the Full Court which reversed his Honour's decision in that case: see Whittle v. Whittle (1965) 66 SR (NSW) 141 . I shall assume that Alderdice v. Alderdice (1963) 64 SR (NSW) 467 , correctly states the effect of the Commonwealth Act. I have no reason to think that it does not. It then follows, in this case, that if any proceedings could have been taken, and had been taken, by either spouse in respect of the wife's maintenance, they would, after 1st February 1961, have been governed by the Commonwealth Act. But no such proceedings were taken; and, the husband being dead, no such proceedings can now be taken : see the remarks of Kitto J. in Johnston v. Krakowski [1965] HCA 57; (1965) 113 CLR 552, at p 562 . Moreover the Commonwealth Act did not diminish the right of a wife to seek an order for maintenance: nor did it alter the effect of the deed the appellant and her husband had executed. (at p458)
19. I leave aside for the moment the consequences, whatever they may be, of
the Divorce Court's approval of the deed, to consider
simply what, without
this, was its effect. On that basis, the appellant's covenant in cl. 2 that
she would accept the terms of the
deed in full settlement of all claims
against her husband for alimony and maintenance would not have stood in the
way of her applying
to the Divorce Court for an order that her husband pay
more by way of maintenance than he had promised by the deed. He could not
have
had the aid of the law to coerce her into keeping her covenant. She could not
have been restrained by injunction from breaking
it. Any court in which he had
sought to enforce it must have said that it was invalid.
"Void", "Invalid", "Unenforceable". (at p458)
20. I have in this judgment used the words "invalid", "unenforceable" or "ineffectual", as, in similar cases, other judges have done. Other words and phrases can be used. For example, in the judgment under appeal the appellant's covenant is called "illegal and void". A similar promise was called by Asquith L.J. "void and unenforceable" : Gaisberg v. Storr (1950) 1 KB 107, at p 115 . The words used do not matter if the actual legal result they are used to express be not in doubt or debate. But it has always seemed to me likely to lead to error, in matters such as this, to adopt first one of the familiar legal adjectives - "illegal", "void", "unenforceable", "ineffectual", "nugatory" - and then having given an act a label, to deduce from that its results in law. That is to invert the order of inquiry, and by so doing to beg the question, and allow linguistics to determine legal rights. That need not happen if words be used, as Hobbes said that by wise men they should be, only as counters to reckon with; but reckoning becomes difficult if the values of counters are not constant. There may be no difficulty for adherents to Humpty Dumpty's principle as expounded by him to Alice. But his latitude and his command of his words as his servants are not generally allowed to lawyers. They are called upon to interpret other men's words. (at p458)
21. The word "void" has never been an easy word, as is pointed out in the
second Australian edition of Cheshire and Fifoot's Law
of Contract, p. 440. It
is commonly said that when it describes a juristic act it means that it was
always devoid of legal consequences.
But this in itself is ambiguous, as
witness the difference (which I have emphasized by italics) between the first
edition of Sir
George Paton's Text Book of Jurisprudence (1946) and the second
edition (1951). In the first it was said (at p. 241) that "if the
defects (of
a juristic act) are such that the act has no legal effect at all, then the act
is said to be void". The relevant passage
in the latter edition (at p. 250)
states - more accurately perhaps, and influenced probably by Professor Cohn's
remarks in Law Quarterly
Review, vol. 64 (1948), at pp. 325, 326 -
"A defect may make a juristic act either void or voidable.
If the defect is such that the act is devoid of the legal results
contemplated then the act is said to be void. A void act is
sometimes said to be a nullity in law, but this is not strictly
so, as an act void in its primary intent may nevertheless have
an effect in another way." (at p459)
22. It seems to me that the defects, deficiencies or consequences of the
appellant's covenant are not well ascertained by calling
it void or using any
particular epithet. The better course seems to be to abandon single words and
to look at what has been said
to be the result of a covenant such as that in
cl. 2 of the deed, leaving aside for the moment the effect of the Divorce
Court's
approval of the deed. Had the appellant sought an order for
maintenance while her husband was alive, and while it was still open
to her to
do so, the Divorce Court would have had power to override this covenant. I get
this convenient phrase from the judgment
of Greer L.J. in the Court of Appeal
in Hyman v. Hyman (1929) P 1 . But to say that her promise did not preclude
her approaching
the Divorce Court, or preclude the Court from making an order
for maintenance in her favour, does not really answer the question
on which
this case depends. The appellant's husband could not have held her to her
promise. That is indisputable: but does it follow
that he could at any time
have repudiated his promises to her in the deed ? Were it not for misgivings
engendered by Bennett v. Bennett
(1952) 1 KB 249 , to which I shall come
later, I would have thought not. I would have had no doubt that, so long as
she in fact kept
her promise, her husband was bound by his. (at p459)
23. That however is to anticipate. I shall come later to Bennett v. Bennett
(1952) 1 KB 249 . I want first to look at what was said
in the House of Lords
in Hyman v. Hyman (1929) AC 601 of the consequence of holding that the wife's
covenant could not be enforced
against her. None of their Lordships said that
the deed they had to consider was executed in vain, that it was a nullity, in
the
sense that it should be torn up and treated as if it never had been. None
of them said that the husband's covenants in the deed should
be treated as
having been absolutely and always null and void. Some of them said just the
opposite. Lord Hailsham said (1929) AC,
at p 609 :
"It may very well be that when the facts come to be
investigated, the Court will say that a sum of this magnitude,
so secured, voluntarily accepted as a sufficient maintenance
ten years ago, and faithfully paid ever since, is a sufficient
provision, and that the Court will not deem it to be reasonable
to order any further payment to be made : this is not the
question which your Lordships are considering. The only
question which the order appealed against determines is that
the existence of the covenant in the deed of separation does
not preclude the wife from making an application to the Court ;
this by no means implies that, when the application is made,
the existence of the deed or its terms are not most relevant
factors for consideration by the Court in reaching a decision." (at p460)
24. Lord Buckmaster, after saying that the statutory authority of the Divorce
Court to decree maintenance for a wife was inseparable
from the power to grant
a divorce, said (1929) AC, at p 625 :
"And in the exercise of this authority they are in no wayThese words do not accord with the view that the wife had no "contractual rights". (at p460)
bound by the contracts made between the parties though, as
pointed out by the Lord Chancellor, the consideration of all
contractual rights possessed by the wife must be borne in
mind."
25. Lord Atkin, having said that "the wife's right to future maintenance is a
matter of public concern, which she cannot barter
away", went on as follows
(1929) AC, at p 629 :
"This is not to say that in any particular case the CourtScrutton L.J. had expressed a similar view in the Court of Appeal when in the course of his judgment he said (1929) P, at pp 37, 38 :
must make an order ; still less that in this case it must do so.
I could well understand the Court coming to the conclusion
that the parties' pre-estimate of the wife's reasonable needs
was judicious, and that the allowance, continuing as it does
after the husband's decease, and being independent of any
fluctuations in the amount of his fortune, needed no
supplement."
"I repeat that nothing in this decision fetters the discretion
of the Court as to what effect they should give to the separation
deed, when they come to consider the matters which they are
directed by statute to consider, including 'the conduct of the
parties'. I only decide that the mere fact of a covenant in a
separation deed not to ask for further maintenance does not
in itself and without more oust the jurisdiction of the Court
to consider an application for further maintenance." (at p461)
26. In Australia Seymour v. Seymour and Delaney (1936) 36 SR (NSW) 667 is to
the same effect. That was a case in which a wife, respondent
in divorce
proceedings, sought an order for alimony pendente lite. She and her husband
had been living apart and had entered into
a separation deed whereby he had
convenanted to pay her a weekly sum and she had covenanted not to make any
claim for maintenance
or alimony. The matter came before the Full Court of the
Supreme Court on a reference by the Judge in Divorce. The question was whether
the wife's covenant in the separation deed precluded the Court from
entertaining the application for alimony. Jordan C.J., after
a review of the
law and the authorities up to that time, held that the Court should consider
the application. He added (1936) 36
SR (NSW), at p 672 :
"Of course, the nature of the provision made by the
separation deed and the fact of the existence of the covenant
are matters to be taken into consideration. The covenant
to pay maintenance is itself a source of maintenance the
existence of which must be reckoned with ; and care must
be taken to see that if an order is made the husband is not
required to pay twice over." (at p461)
27. These passages to which I have referred seem to me to be, all of them,
inconsistent with the idea that the unenforceability,
or invalidity if that
word be preferred, of the appellant's covenant in cl. 2 of the deed rendered
the deed for all purposes a nullity
or avoided the husband's covenants. In all
the judgments from which I have quoted it was assumed that, subject to the
power of the
Divorce Court to make an order in favour of the wife, the
husband's covenants in the deed were valid and remained on foot ; and that,
as
Lord Atkin expressly noticed, they were to continue after the husband's
death.
Bennett v. Bennett. (at p462)
28. I go now to Bennett v. Bennett (1952) 1 KB 249 , on which the respondents
set great store. That case, Somervell L.J., one of
the members of the court
which decided it, was to say two years afterwards, was "a special case in
somewhat unusual circumstances"
: Goodinson v. Goodinson (1954) 2 QB 118, at p
123 . But the main facts were simple. A husband, respondent in a divorce suit,
had,
before the decree was pronounced, undertaken by deed to pay certain sums
annually to his wife for her support and that of an infant
child. She had
convenanted to accept this in full satisfaction of all claims for alimony or
maintenance for herself or her children.
The husband got into financial
difficulties and was unable to keep up the payments. The wife then brought an
action on the deed claiming
the amount in arrears. The case came before Devlin
J., as Lord Devlin then was. He gave judgment for the husband, holding that
the
wife's convenant was unenforceable and that the husband's covenant given
in consideration for it was unenforceable. His Lordship,
after remarking that
the husband's promise was under seal and required no consideration to support
it, said (1951) 2 KB 572, at p
575 :
"But although no consideration is necessary, if the bondThat is, of course, beyond dispute as a general proposition. But the question which then arises is whether a promise not to resort to the Court is a promise "to do an act which is illegal or contrary to public policy". For reasons which will appear, I do not think that it is. However, the Court of Appeal affirmed the decision of Devlin J., and to what their Lordships there said I now turn. (at p462)
in fact provides for a consideration and that consideration
consists of a promise to do an act which is illegal or contrary
to public policy, the bond is void and cannot be enforced."
29. The promise not to invoke the jurisdiction of the Divorce Court was,
Somervell L.J. said, "the main consideration moving from
the wife" : the
husband's convenant was thus not severable and fell with hers. Denning L.J.,
as Lord Denning then was, reached the
same conclusion, saying (1952) 1 KB, at
p 262 :
"There is no consideration moving from the wife except(1950) 1 KB 107 ; Combe v. Combe (1951) 2 KB 215 ." and of the wife's convenant:
an implied promise to accept the named figure and not to ask
for more, and that is invalid, because it impliedly takes away
the jurisdiction of the court to give her more. If her promise
does not bind her, then his should not bind him : Gaisberg v.
Storr
"That clause is invalid. It forms the whole, or
substantially
the whole, consideration for the husband's promise to
pay the annuities. His promise is therefore invalid." (at p463)
30. This decision has attracted attention because of its bearing on the topic
of several separate and inseverable promises in the
one contract : see e.g.,
Law Quarterly Review, vol. 69 (1953), at pp. 111-116. It seems to me, however,
and I say this with sincere
respect, that the phraseology of some parts of the
judgments can lead to mistakes. (at p463)
31. The undertakings of each of the parties in that case were convenants in a
deed. To speak of consideration given for them is
misleading if it be taken as
importing the concept of valuable consideration into promises by deed. And in
each of the cases, Gaisberg
v. Storr (1950) 1 KB 107 and Combe v. Combe (1951)
2 KB 215 , which Denning L.J. cited in support of his statement that "if her
promise
does not bind her, then his should not bind him" the husband's promise
sued upon was not under seal : the wife's promise in consideration
of which it
was given was unenforceable : thus there was in those cases no valuable
consideration for the husband's promise : the
agreement was a nudum pactum.
This apparently was so too in Goodinson v. Goodinson (1954) 2 QB 118 . The
question whether, apart
from the wife's unenforceable promise, there was any
consideration which would support the husband's promise was thus critical in
those three cases. But that was not so in Bennett v. Bennett (1952) 1 KB 249 ,
nor is it so in the present case. In neither was the
agreement naked. In each
it was clothed in a deed. Furthermore the question posed in Bennett v. Bennett
(1952) 1 KB 249 whether one
convenant was "the main consideration" or
"substantially the whole consideration" for another is not easily answered,
because, for
more than three hundred years, courts of common law have said
that they will not inquire into the adequacy of a consideration or
weigh the
inducements of a promise. Nevertheless the decision in Bennett v. Bennett
(1952) 1 KB 249 is not to be, for those reasons,
discounted. As I read them
the judgments on this aspect turn not on consideration in the contractual
sense, but on a theory of dependent
convenants.
Independent or dependent covenants. (at p463)
32. The question posed is whether executory promises by the husband and wife
in one deed were independent or dependent covenants.
The tests to be applied
in determining this are stated in the instructive judgment of Jordan C.J. in
Newcombe v. Newcombe (1934)
34 SR (NSW) 446 . I quote one sentence (1934) 34
SR (NSW), at p 450 :
"An implication of intention that the performance of oneWhen covenants are mutual, the matters which are to be regarded as the consideration for each are thus a factor in deciding whether they are independent engagements or interdependent conditions. But the word consideration is not to be understood here in its technical sense of valuable consideration, but as meaning rather a casual connexion, reason or inducement, a counterpart promise by one covenantor, the performance of which was regarded by the other as a condition of his own obligation : see e.g. Huntoon Co. v. Kolynos (Incorporated) (1930) 1 Ch 528, at p 563 per Romer L.J. (at p464)
covenant shall be conditional on the performance of the other
arises where the nature of the covenants is such that any
breach of either of them would necessarily be regarded by
reasonable men as absolving the other party from performing
his covenant."
33. Further citation is unnecessary. I am satisfied that, by all the well-known tests, the parties intended the appellant's covenant in cl. 2 of the deed and all of her husband's covenants in cl. 1 - to pay her money during her life and on the execution of the deed, to assign to her the insurance policies on his life, to give and make over to her certain chattels - to be dependent, not independent, covenants. (at p464)
34. That our law should still treat covenants by deed differently from other promises in writing may seem to be today a regrettable historical survival - a relic of a very distant past, and of the distinction in somewhat later times between covenant, or debt, and assumpsit as forms of action. This survival may seem the more unreal where, as in New South Wales today, an instrument may be a deed without actual sealing. It is enough if it be called a deed, or said to be sealed, and is signed and witnessed : Conveyancing Act, 1920 (N.S.W.), s. 38. But it is not for any court administering the common law to shut its eyes to a seal and in impatience to treat words of covenant as if they were promises which, in the absence of consideration, the law would not enforce. For this reason I am unable, notwithstanding what was said in Bennett v. Bennett (1952) 1 KB 249 , to accept the proposition that simply because the appellant's covenant was not enforceable against her, her husband's covenant was unenforceable by her. The covenants were not independent, but interdependent, I agree. But it cannot, I think, be said that his covenant was conditional on hers being binding upon her. That her covenant would not be binding upon her should I suppose be assumed to have been known to the parties and their advisers when the deed was executed, for the House of Lords had said so some years before. The covenants of the parties were reciprocal ; but, as I see it, in respect of performance in fact, not enforceability in law. (at p465)
35. There was no reason in law why the appellant should not keep her
covenant. Public policy prevented her abandoning the rights
which the statute
gave her : but it did not require that she assert them. Had she gone back on
her promise in cl. 2, as she was entitled
to do, and sought an order for
maintenance from the Divorce Court, her husband would have been released from
his covenants in cl.
1. But while she kept her covenant, as she lawfully might
do, why should it be said that he was not bound by his ? The position here
is
quite different from a case of a covenant to do an act forbidden by law or
against good morals as recognized by law, for a covenant
to do an unlawful or
immoral act taints, infects and makes unenforceable all other promises,
whether by deed or not, which are directly
related to it, or dependent upon
it: Fisher v. Bridges [1854] EngR 473; (1854) 3 El & Bl 642 (118 ER 1283) . I can finish on
this aspect by quoting
a few words from the judgment of the Court of King's
Bench in Binnington v. Wallis (1821) 4 B & Ald 650, at p 652 (106 ER 1074,
at
p 1075) :
". . . it is a very different question, whether a considerationPublic policy in relation to the husband's covenants. (at p465)
be sufficiently good to sustain a promise, and whether it be so
illegal as to make the deed which required no consideration
void."
36. The judgments in Bennett v. Bennett (1952) 1 KB 249 , that of Denning
L.J. in particular, raise another and a wider issue. The
husband's covenant in
the deed there was said to be unenforceable not only because it was the
correlative of his wife's unenforceable
covenant. As a covenant to pay a fixed
unalterable sum it was said to be itself inconsistent with the control the
Divorce Court should
exercise over orders for a wife's maintenance, which it
could make, vary from time to time, and discharge as changing circumstances
might require. It was said that the husband's covenant, being linked with that
of the wife to refrain from approaching the Court,
was itself an undertaking
which purported to oust the jurisdiction of the Court: that it was itself
therefore against public policy,
and invalid in the sense that an action at
law could not be founded on it. If this means that a deed, such as that in
Bennett v.
Bennett (1952) 1 KB 249 , is always unenforceable as against the
husband, I must respectfully take leave to doubt it. There is think
I no
overriding consideration of public interest which would make a husband's
promise to pay invalid. The remarks of Jenkins L.J.
in Russell v. Russell
(1956) P 283, at p 294 , in reference to an argument that "what is sauce for
the goose is sauce for the gander"
are pertinent, although they arose out of
different facts.
An analogy - restraint of trade. (at p466)
37. In some of the cases to which we were referred an analogy was seen
between an agreement such as that in the deed in this case
and agreements in
unreasonable restraint of trade, which are invalid because against public
policy. The analogy, although suggestive,
is by no means perfect. There is
however one important similarity. The appellant's covenant, although not
binding, was not illegal.
The same thing can be said of it as has been said of
agreements which are in unreasonable restraint of trade. In Mogul Steamship
Co. v. McGregor, Gow, & Co. (1889) 23 QBD 598, at p 619 , Bowen L.J. said:
"Contracts, as they are called, in restraint of trade, areAnd the Privy Council has said:
not, in my opinion, illegal in any sense, except that the law
will not enforce them. It does not prohibit the making of
such contracts; it merely declines, after they have been made,
to recognize their validity."
"The parties to such a contract, even if unenforceable,[1913] UKPCHCA 2; (1913) AC 781, at p 797 .
were always at liberty to act on it in the manner agreed":
Attorney-General (Cth) v. Adelaide Steamship Co. Ltd.
38. For the reasons I have given I would not be prepared to accept all that it was urged flows from the judgments in Bennett v. Bennett (1952) 1 KB 249 . I realize, however, that the decision has been accepted without question in later cases in England and here ; and members of this Court, other than I, think that it should be followed. I shall assume therefore, for the purposes of this case, that it should be followed by us for what, confined by its facts, it actually decides. I am not prepared to push it further than that. This case then differs from it in two important respects, which I shall deal with separately. The first is that there the wife was still able to pursue the remedy which the Act gave her and out of which she could not validly contract : here she is not. The second is that there the deed between the parties was not approved by the Divorce Court when it pronounced its decree for divorce : here it was. (at p467)
39. As to the first matter. Even if an order could have been made in favour
of the appellant against her husband in his lifetime
for periodical payments
to continue after his death - a very doubtful proposition : see Perpetual
Trustee Co. (Ltd.) v. Alldritt
(1942) 42 SR (NSW) 246 ; Sugden v. Sugden
(1957) P 120 ; Johnston v. Krakowski (1965) 113 CLR, at pp 562, 565 ; cf.
Tyson v. Tyson
(1903) 4 SR (NSW) 51 - no such order was made ; and s. 104 (2)
of the Matrimonial Causes Act 1959-1965 (Cth) has no application.
The
appellant cannot now have any remedy in the divorce jurisdiction ; and the
respondents say she is now without remedy by action
on her husband's covenant.
The contrast with Bennett v. Bennett (1952) 1 KB 249 is striking. There
Denning L.J. began his judgment
by saying (1952) 1 KB, at p 260 :
"In this case the only question to my mind is whether theHe held that she could not enforce her husband's convenant ; but that, he being alive, she could still apply in the Divorce Court for an award of maintenance ; that that was "her proper remedy". Somervell L.J. took substantially the same view.
wife can sue upon the deed by action at law or whether her
proper remedy is by application to the Divorce Court. I
would not subscribe to a decision which deprived her of all
remedy."
40. I go next to the other feature in which the present case differs from Bennett v. Bennett (1952) 1 KB 249 . It is the effect of the recital in the decree nisi for divorce that "His Honour pronounced that the petitioner had sufficiently proved the contents of the said petition and having approved the deed of settlement ordered and decreed . . .". It is agreed that the expression "the deed of settlement" in this document means the deed now in question. (at p468)
41. It was said for the respondents that the deed would have been put before the Divorce Court merely to rebut any suspicion of collusion which would prevent the Court dissolving the marriage. The Court's approval, it was submitted, meant no more than that the deed was found not to stand in the way of a divorce, see Galbraith v. Galbraith (1962) 80 WN (NSW) 551 . But I think we cannot go behind the formal record of the Supreme Court. The statement that the judge approved the deed of settlement seems to mean more than that he was aware of the deed the parties had executed and did not treat it as indicative of collusion. It must, I think, mean that, having given it attention, he pronounced it as in some sense proper to be carried into effect. But the question is not altogether easy and demands close consideration. (at p468)
42. An agreement which evidences collusion, and is thus a bar to divorce,
will be of no effect. It fails of effect because the condition
for its
operation, divorce, is not fulfilled, for the very reason that its existence
has prevented this. It seems to me that it is
in this sense that the remarks
of Denning J., as he then was, in Emanuel v. Emanuel (1946) P 115 , are to be
understood. His Lordship
there dealt with the need for the Court to be
satisfied that its jurisdiction was not being collusively invoked ; and he
referred
to the difficulty of drawing the line between an improper and a not
improper agreement and said (1946) P, at p 117 :
"It is for these reasons that the Court requires that all
agreements for permanent maintenance, custody of children,
damages or costs shall be disclosed to it at the hearing of the
petition, no such agreements being valid without the sanction
of the Court, except those made after decree absolute." (at p469)
43. His Lordship repeated this in Combe v. Combe (1951) 2 KB 215, at p 222 ,
saying :
"I have always understood that no agreement for
maintenance,
which is made in the course of divorce proceedings
prior to decree absolute, is valid unless it is sanctioned by the
Court. . . . I know that such agreements are often made, but
their only valid purpose is to serve as a basis for a consent
application to the Court. The reason why such agreements
are invalid, unless approved, is because they are so apt to be
collusive." (at p469)
44. In Whittle v. Whittle (1965) 66 SR (NSW) 141 , Walsh J. said (1965) 66 SR
(NSW), at p 145 :
"I think it must be acknowledged that the authorities onI agree, and for that reason I refrain from a detailed examination of the cases. (at p469)
the subject create considerable difficulty in arriving at a positive
view as to the effect, prior to the enactment of the Matrimonial
Causes Act 1959 of a sanction or an approval by the Court of an
agreement for maintenance which by its terms was intended
to be a permanent provision by which the wife would be bound."
45. It is I think important to keep distinct, and not to confuse, two different situations in which an agreement for maintenance, the validity of which might otherwise be challenged, is saved by the sanction or approval of the Divorce Court. (at p469)
46. The first is that agreements which might be denounced as part of a collusive arrangement for a divorce are valid if disclosed to the Court and "sanctioned", which I take it means here countenanced and held not to stand in the way of a divorce : see e.g. Carmichael v. Carmichael (1925) 42 TLR 133 ; Clarke v. Clarke (1925) 42 TLR 132 ; Teale v. Burt (formerly Teale) and Burt (1951) P 438, at p 442 . This position can, of course, only arise when the agreement which, if it were not sanctioned or approved, might be impeached was made before decree absolute and in contemplation of divorce. The invalidity, which the Court's approval prevents, does not, in such a case, arise because the agreement was to oust the Court's jurisdiction or to renounce statutory rights - quite the reverse : it arises because the agreement is made when the jurisdiction is to be improperly, because collusively, invoked. (at p470)
47. The other situation in which the Court's approval has been held to prevent an agreement being invalid arises quite differently. In it the agreement in question may have been made before divorce proceedings began, while they were in progress, or after decree absolute. It is not said to be invalid because collusive, but because it embodies a promise by the wife to renounce her statutory rights which is invalid by reason of the principle in Hyman v. Hyman (1929) AC 601 . The approval of the Court is not then required to dispel the reproach of collusion. It operates differently, and according to a doctrine which seems to have been first enunciated in Bennett v. Bennett (1952) 1 KB 249 . The two situations can however overlap. As they can be met in the same way, namely by the Divorce Court's approval of the agreement between the parties, any formal unqualified record of the Court's approval must, I think, suffice to meet the requirement in either or both situations, whatever was the purpose for which it was sought. If the Court has in fact approved of an agreement, for whatever reason it did so, it is in my opinion impossible to say that the agreement was ineffectual as against the public interest. (at p470)
48. It is noteworthy that in the article "Divorce" in Halsbury's Laws of
England, 3rd ed., vol. 12, p. 439, the law relevant to
the second situation is
stated in the words which Lord Denning used in Bennett v. Bennett (1952) 1 KB
249 . To his judgment I therefore
return. After the passages I have already
quoted, in which his Lordship had said that both the wife's and the husband's
covenants
were invalid, he said :
"If the parties do not oust the jurisdiction of the DivorceAnd later,
Court, but preserve it by making their agreement subject to
the sanction of the Court, then, once it is sanctioned, it is
valid."
"Its sanction should, I think, be obtained in this way : ifThe part of the second passage which is relevant here is that in relation to a secured provision : "The Court should be asked to approve the deed which contains the provision." The deed in this case answers the description of a secured provision. It was secured by the husband's convenant under seal, given for himself and his executors : see Redgrave v. Redgrave [1951] HCA 21; (1951) 82 CLR 521 . A bond is commonly and properly called a security. And that this was the sense in which his Lordship used the expression is apparent because he said (1952) 1 KB, at p 263 :
the parties agree on a figure for maintenance, the Court should
be asked to make an order for that figure ; if they agree on a
secured provision, the Court should be asked to approve the
deed which contains the provision."
"The proper way of doing it would be to ask the judge to
approve the deed as a secured provision for the wife on the
ground that it secures to her an assured sum of money by
covenant under seal." (at p471)
49. According to the terms of the decree nisi in the case before us, the deed
was approved by the learned and very experienced judge
in divorce when he made
the decree. It is true that he did not then, in 1950, have the benefit of
knowing what was to be said by
Lord Denning two years later. Neither did he
know that Jenkins L.J. was to say in 1956, in Russell v. Russell (1956) P, at
p 295
:
"The principle in Hyman v. HymanNor did he know that Abbott J. would say in the Supreme Court of South Australia in Burney v. Burney (1956) SASR 171, at p 176 ,
(1929) AC 601
, be it remembered,
is satisfied by any bargain which is brought before the Court
for approval and approved by the Court."
"Hyman v. HymanBut he did approve the deed and the only question is what was the effect of his doing so. I do not think it is to be discounted simply because he did not have the guidance of later authorities. Nevertheless, it was said for the respondents that his Honour's approval was of no consequence. Several reasons were advanced for this. (at p471)
(1929) AC 601
appears now to apply only to
agreements
made between the spouses and containing covenants
by the wife not to apply for future maintenance, when those
agreements have not been submitted to the Matrimonial
Court for approval."
50. First it was said that Lord Denning's proposition, that the sanction of the Divorce Court would confer validity on an agreement, applied only when, using his Lordship's words, the parties had preserved the jurisdiction of the Court "by making their agreement subject to the sanction of the Court". In the case of a deed it was said this meant a delivery in escrow. That an instrument was delivered as an escrow can be inferred from circumstances : Bowker v. Burdekin [1843] EngR 277; (1843) 11 M & W 128, at p 147 [1843] EngR 277; (152 ER 744, at p 751) and other cases cited in Norton on Deeds, 2nd ed., p. 20 ; also In re Carile ; Dakin v. Trustees Executors and Agency Co. Ltd. (1920) VLR 427 . But I do not think that it can be inferred from the evidence in the present case that the deed was executed as an escrow - that is that its operation, either as a whole or as to any particular term, was from the outset intended by the parties to be conditional on the Divorce Court's approval. But it can, I think, be inferred that when the parties executed the deed, each in the presence of his or her solicitor, they, or at all events their advisers, understood that it was to be next day placed before the Divorce Court. The lawyers must have been conscious of the need to disclose it to rebut any suggestion of collusion. It was of special importance in this case that this be done, for a petition for judicial separation had been, by leave, amended to be a petition for dissolution of the marriage ; and the cases of Doutrebande v. Doutrebande (1929) 29 SR (NSW) 456 , and Cohen v. Cohen (1942) 43 SR (NSW) 37 , stood as warnings. I have no doubt that the intention throughout was to place the deed before the Court ; and I have no doubt that if the Court's approval of the deed was necessary to make it fully binding, and the parties knew of this, they would have wanted to obtain this approval. But I am unable to think that it was intended by them that the deed was to have no operation at all unless the Court approved it. It seems to me that they intended that it should operate according to its terms so far as the law allowed and according to events. (at p472)
51. I do not read what was said in Bennett v. Bennett (1952) 1 KB 249 as if the very words of the judgments were the provisions of a statute. If an agreement, which would have been unenforceable if not approved by the Court, was in fact put before the Court by the parties, and was approved by the Court, I do not think it should be necessary to ask whether or not at an earlier stage it answered the description of an escrow. It seems to me rather that it would be more accurate to say that it was, from the outset, like many other transactions and acts in the law which in their inception are inchoate and only become effective on receiving the assent or approval of a third party or of some public authority. I would on the present aspect agree with the views which were forcefully expressed in the learned judgments in the Supreme Court of New South Wales in Shaw v. Shaw (1965) 66 SR (NSW) 30 , if only I were satisfied of all parts of their underlying assumption. But I am not. Of course I do not question the decision in that case. This Court held that it was demonstrably right : Shaw v. Shaw [1965] HCA 39; (1965) 113 CLR 545 . In that decision I agreed. But it seems to me to be a mistake to regard the approval of the Divorce Court of an agreement which, without that approval, would be unenforceable, as a turning of the void into the valid by a magical stroke. If Bennett v. Bennett (1952) 1 KB 249 is to be accepted, is not the rule rather that unless and until it were sanctioned or approved by the Court the agreement was not enforceable by law? Approval was not necessary to change its character but rather to complete the transactions. (at p473)
52. In L. V. L. (1962) P 101, at pp 118, 119 , Willmer L.J. said :
"It is, of course, well established that the jurisdiction of theThe making of an order would of course put the matter beyond doubt ; but I do not think that the cases which deal with the need for the Court's approval or sanction require that this be made manifest by an order in the terms of the agreement. Moreover, again if the reasoning in Bennett v. Bennett (1952) 1 KB 249 be accepted in its entirety, the Court can I think approve of an agreement as an instrument operative inter partes, although it might not be able itself to make an order in the same terms. That position arises when the agreement provides, as in this case, for payments to the wife to continue beyond the joint lives of the parties. I agree that cl. 3 of the deed was of no effect for it contemplated the Divorce Court making an order which it could not make. But an agreement to endure for the life of the wife and to bind the husband's executors is not inherently invalid : cf. Kirk v. Eustace (1937) AC 491 . And, notwithstanding criticisms in later cases, I am not persuaded that the decision of Roper J. in Perpetual Trustee Co. (Ltd.) v. Alldritt (1942) 42 SR (NSW) 246 , was mistaken in so far as his Honour held that the agreement between the parties, intended to endure for the lifetime of the wife, was enforceable against the husband's estate. That it could not be translated into an order of the Court does not mean that it was invalid as an agreement or that it could not have had the approval of the Court : cf. Tyson v. Tyson (1903) 4 SR (NSW) 51 . (at p473)
Court to award maintenance to a wife cannot be ousted by
any private agreement between the parties : see Bennett v.
Bennett
(1952) 1 KB 249
following Hyman v. Hyman
(1929) AC 601
. Such an
agreement
is unenforceable against the wife as being contrary to
public policy. But it is otherwise when the agreement is
brought before the Court and an order of the Court is made
giving effect to its terms."
53. There is a further question on this part of the case. It is said that
before the amendment of s. 40 of the Matrimonial Causes
Act, 1899-1957 of New
South Wales by Act No. 22 of 1958, the Supreme Court in its matrimonial
jurisdiction had no power to approve
of an agreement such as that embodied in
the deed. By s. 39 (1) of the Matrimonial Causes Act, 1899, as it stood at the
time of the
decree nisi, the Court could
". . . on any decree for dissolution of marriage order theAnd by s. 39 (3) it was enabled to "settle and approve . . . of a proper deed or instrument to be executed by all necessary parties". Such a deed was "final, irrevocable and unalterable" : Saywell v. Saywell (1942) 65 CLR 557, at pp 564, 569 . Instead of ordering the husband to secure to the wife a gross or annual sum the Court might order, pursuant to s. 40, that he pay to the wife during their joint lives a monthly or weekly sum for her maintenance. Such an order could be varied, modified or temporarily suspended if he became unable to continue such payments. The amendments of s. 40 made in 1958 enabled the Court to order that "a gross sum or a weekly, fortnightly, monthly or other periodic sum be paid or secured" ; and that any necessary deed or instrument be executed : and power was then expressly given to "settle and approve any deed or instrument so ordered to be executed" : and also, among other things, to "sanction an agreement for the acceptance of a gross sum or periodic sums in lieu of rights given under this Part". (at p474)
husband to secure to the wife for any term not exceeding her
life and to the satisfaction of the Court such gross or annual
sum of money as it deems reasonable."
54. Two questions emerge from this. They are important, not only for this
case, but I imagine for other parties in other cases too.
The first is whether
the deed in this case was one which could have been approved under s. 39.
Street J. held that it was not. I
am of the same opinion, because it was not
executed as a result of an order of the Court made after
the inquiry which s.
39 (2) directed.
I should, however, add that his Honour's other reason for
putting it outside s. 39 - namely that it did not secure a "gross or annual
sum" - is perhaps questionable. Surprising though it may seem, an amount
calculated
as a weekly amount and payable monthly can, it
seems, be called an
"annual sum" : In re Janes' Settlement ; Wasmuth v. Janes (1918)
2 Ch 54 .
Moreover, apparently all annual, monthly
and weekly payments are alike in
being by the law of New South Wales regarded
as accruing from day to day and
apportionable accordingly
: Conveyancing Act, 1920 (N.S.W.), s. 144. The
second of the two questions
which, as I have said, emerge at this point is
whether
the absence before 1958 of any express authority for the Court to
sanction
agreements, the Court's formal statement in this case
that it had
approved the deed was altogether nugatory. The decision of the
Supreme Court
of New South Wales in Whittle v. Whittle
(1964) 82 WN (Pt 1) (NSW) 31 ,
supported by the dicta in Shaw v. Shaw (1965)
66 SR (NSW) 30 , is certainly
weighty; and it is with
some hesitation that I have come to a different
conclusion. I see no reason
to disagree with the actual decision in Whittle v.
Whittle
(1964) 82 WN (Pt 1) (NSW) 31 upon the facts of that case. Whatever
effect
the approval of the deed there had in the proceedings for
judicial
separation, it must I think have operated only while the parties
remained
married, though separated. I do not see how the
approval of it in those
proceedings could destroy the statutory rights which
public policy assured to
the wife in altogether different
proceedings which occurred ten years later.
But the case is important because
the Full Court did not say that the approval
was ineffective
or spent. It held that it was not competent in 1955 for the
Court (either
by the judge or the Registrar) to have sanctioned or approved
the agreement, there being no statutory authority for doing so. I am
not
satisfied that that is a correct view. The law says to a
wife who is a party
to divorce proceedings: You have rights which you
cannot relinquish by
agreement unless you get the approval
of the Court in which you could assert
them. It seems to me that whenever
a compromise or settlement of a claim is
valid in law,
if it has the sanction of approval of the court having
jurisdiction in the
matter of such a claim, then that Court has inherent power
to sanction or approve the compromise or settlement. Express statutory
authority is not I think needed to enable it to do so.
Conclusions. (at p475)
55. Accepting then for present purposes what I take to be the doctrine of Bennett v. Bennett (1952) 1 KB 249 and taking the expressed approval of the deed in this case as satisfying the requirements of that doctrine, what then is the final result? I think that it is that if the appellant's husband had repudiated his undertaking, or failed to make the promised payments as they fell due, the appellant could have sued him on his covenant. She could not have been told, as Mrs. Bennett was, that her proper remedy was by an application in the Divorce Court. (at p475)
56. Whether the Court's approval made the provisions of the deed immutable is another question. The Court's approval of the deed, being before the Matrimonial Causes Act 1959 (Cth) came into operation, cannot be related to its provisions. The agreement between the parties was thus not sanctioned pursuant to s. 87 (1) (k) of that Act. Therefore, in this case, no question arises such as was considered in Shaw v. Shaw [1965] HCA 39; (1965) 113 CLR 545, at p 549 , and Sherwood v. Sherwood (1966) 85 WN (Pt 1) (NSW) 483 . Whatever was the position while both parties were alive, the Divorce Court has no longer any jurisdiction over them. Yet the deed stands and its covenants are I consider enforceable by the appellant by action at law against the respondents as he late husband's executors. (at p476)
57. As what I have written is discursive, opinionated, perhaps turgid,
certainly lengthy, I summarize my conclusions as follows:
(1) The appellant was not precluded by her covenant in cl. 2 of the deed
from applying to the Supreme Court in its matrimonial
causes jurisdiction for
an order for maintenance, while and for so long as she was by law entitled to
make such an application.
(2) It was not unlawful for the appellant to
perform her covenant. It was merely unenforceable by law. (3) An
unenforceable promise
is not a valuable consideration which will support an
executory contract not under seal. (4) A covenant by deed which is not
enforceable,
but which is not to do an act that is unlawful, does not render
related or dependent covenants unenforceable. In such a case the
condition
resulting from dependency of mutual covenants which is ordinarily implied is
that each covenantor should perform, or be
ready to perform, his covenant, not
that it must be enforceable against him at law. (5) If and so far as
anything said in the judgments
in Bennett v. Bennett (3) is to be read as
contradicting the above propositions, it should not be followed. (6) Bennett
v. Bennett
(1952) 1 KB 249 is in any event distinguishable from this case
because: (a) in the events which have happened it is not now possible
for the
appellant to seek an order for maintenance; and (b) this deed was approved by
the Divorce Court. Either (a) or (b) above
suffices to make the decision in
Bennett v. Bennett (3) not applicable in this case. (7) The appellant is
entitled to be paid until
her death the sum of twenty-five dollars per week
from the estate of her husband pursuant to his covenant, the obligations of
which
bind the respondents in their capacity as executors. I would answer the
question in the originating summons accordingly, and allow
the appeal. (at
p477)
OWEN J. The question which arises in this appeal is whether the respondents, the executors of the will of one J. H. J. Brooks deceased, are liable to make certain periodic payments to the appellant under the terms of a deed entered into on 11th December 1950 between the appellant and the deceased who was then the appellant's husband. Street J., before whom the question arose, decided it in favour of the respondents and from his decision this appeal is brought. (at p477)
2. It is common ground that, as the deed recites, it was executed at a time
when proceedings for dissolution of marriage had been
instituted by the
appellant in the Supreme Court of New South Wales in its matrimonial causes
jurisdiction and she had indicated
to the deceased her intention, in the event
of a decree absolute being made, to apply to the Court for an order for
permanent alimony.
By cl. 1 (b) of the deed the deceased covenanted that "as
from the granting of the Decree Absolute" he would "during the life of
the
wife pay to her the sum of Thirteen pounds seven shillings (13pounds.7.0) per
week; such payments to be paid in advance on the
last day of each month for
the succeeding month . . ." subject to certain provisos which are not material
for present purposes. Clause
2 of the deed was as follows:
"2. The wife covenants with the husband that she willAnd by cl. 3 the deceased covenanted that, if required to do so by the appellant, he would consent to an order being made by the Court for the payment of the weekly sums covenanted to be paid by him "in order to secure" to the appellant those weekly payments. The effect of cll. 2 and 3 was that, while the appellant might seek an order of the Court to secure the payments agreed to be made, she had covenanted to accept those payments in full settlement of all her claims for alimony or maintenance. (at p477)
accept the terms provided by this Deed in full settlement of
all claims against the husband for alimony and maintenance
of any description."
3. On 12th December 1950 the day following that on which the deed was executed, the appellant obtained a decree nisi for dissolution of marriage and that decree, after reciting that the Court had "approved the deed of settlement" went on to order that the marriage be dissolved within six months from the date of the decree. The "deed of settlement" to which the decree referred is admittedly the deed of 11th December 1950. The decree nisi was made absolute on 12th July 1951, and neither then nor at any other time was the Court asked by the appellant to make an order for alimony or maintenance or "to secure" to her the "weekly payments" for which the deed provided. (at p478)
4. At all relevant times the New South Wales Matrimonial Causes Act of 1889 was in force. It empowered the Court, by s. 39, on a decree for dissolution of marriage, to order the husband to secure to the wife for any term not exceeding her life such gross or annual sum of money as it deemed reasonable. By s. 40 (1) the Court, instead of ordering the husband to secure to the wife a gross or annual sum, might order him to pay to the wife during their joint lives such monthly or weekly sums for her maintenance or support as the Court should think reasonable and, by s. 40 (2), it might discharge or modify its order or temporarily suspend it if the husband should become unable to make the payments ordered. It is to be noticed that the deed here in question provided that the payments covenanted to be made by the husband were to be made not during their joint lives but during the life of the appellant, and further that the amounts covenanted to be paid were neither a "gross" nor an "annual sum". It follows that the Court would have had no jurisdiction to make an order in terms of cl. 1 (b) of the deed and in fact it did not purport to do so unless, from the recital in the decree nisi that the Court had approved of "the deed of settlement", it can be said that the Court had, by implication, made an order which it had no power to make - a proposition which cannot be maintained. No doubt the deed was produced to the Court when the application for a decree nisi was heard, not in support of or in answer to an application by the appellant for an order for alimony or maintenance or to secure the payments covenanted to be made by the deceased, for no such application was made, but to meet any suggestion that the divorce proceedings were collusive. (at p478)
5. Street J. considered that cl. 2 of the deed was void as being a provision which purported to oust the jurisdiction of the Court and that the deceased's covenant in cl. 1 (b) to pay to the appellant the weekly sum of 13pounds. 7s. and the appellant's covenant to accept those payments in full settlement of all claims for alimony and maintenance were so dependent, the one upon the other, that they were incapable of severance so that if the appellant's covenant was void, the deceased's covenant failed with it. (at p478)
6. I am of opinion that his Honour's decision on both points was correct. There is no doubt that an agreement which purports to oust the jurisdiction of the courts is void as being against public policy and, applying that general principle, a promise by a wife that, in the event of the dissolution of their marriage, she will accept an amount agreed upon between herself and her husband in full settlement of all claims for alimony or maintenance, is void and unenforceable. Clause 2 contains such a promise and, while it is true that cl. 3 contemplated that the appellant might make an application to the Court for an order to secure the payments for which cl. 1 (b) provided, the fact remains that cl. 2 purported to preclude the appellant from seeking any order for payments other than those set out in cl. 1 (b). If therefore cl. 2 is void and it appears - as I think it does - that on the true construction of the deed the covenant by the husband in cl. 1 (b) is dependent upon the covenant by the wife in cl. 2, the two clauses are incapable of severance and each is void. (at p479)
7. We were referred to a number of cases which bear upon these questions. In
Hyman v. Hyman (1929) AC 601 , the question - and the
only question - that
arose before the House of Lords was whether a wife who had covenanted, in a
deed of separation, not to molest
or disturb the husband or by any means
compel him to cohabit with her or enforce any restitution of conjugal rights
or compel him
to allow her any alimony or maintenance over and above the
amount which he had covenanted to pay her was thereby precluded from obtaining
an order for alimony in proceedings which she had later taken for dissolution
of the marriage. It was held that the wife's covenant
did not debar the Court
from making an order for alimony in her favour although, as was pointed out by
Lord Hailsham (1929) AC, at
p 609 :
". . . this by no means implies that, when the applicationWith this, with respect, I agree. When the court is considering an application for alimony the fact that the parties have reached agreement on the amount to be paid will afford evidence - and in most cases weighty evidence - that the agreed figure is one which makes adequate provision for the wife's maintenance and support. (at p479)
is made, the existence of the deed or its terms are not most
relevant factors for consideration by the Court in reaching a
decision."
8. My brother Menzies has pointed out, however, that passages are to be found in the speeches of their Lordships in Hyman's Case (1929) AC 601 which appear to recognize that, notwithstanding that the wife's covenant in that case was invalid and did not, therefore, debar her from obtaining an order for alimony, the husband's covenant to pay could be enforced. As to this I would make these observations. In the first place, that question did not arise for decision. Further, the deed was a deed of separation. At the time it was executed the husband was living in adultery with another woman and the law did not, at that time, enable a wife to obtain a divorce solely on the ground of her husband's adultery. In these circumstances the view was open - as was pointed out in a later case of Bennett v. Bennett (1951) 2 KB 572 and, on appeal (1952) 1 KB 249 - that the substantial consideration for the husband's promise was the wife's promise that she would take no steps to compel him to cohabit with her. (at p480)
9. In Bennett v. Bennett (1951) 2 KB 572; (1952) 1 KB 249 a wife had
petitioned for dissolution of marriage. Before the making of
the decree her
husband had covenanted to make financial provision for her and a child of the
marriage and she had covenanted to accept
that provision in full satisfaction
of all her claims and those of the child for alimony or maintenance. A decree
for dissolution
of the marriage was made and for a period the husband made the
payments specified in the deed. Later the payments fell into arrears
and the
wife brought an action in which she sought to recover the amounts unpaid.
Devlin J., as he then was, who tried the action
dismissed it on the ground
that the wife's covenant was void as being connot be enforced. In the course
of his judgment his Lordship,
in dealing with the question of severability,
referred to Hyman v. Hyman (1929) AC 601 and said of it (1951) 2 KB, at pp
575, 576
, that
". . . it may well be that the objectionable clause in theIn the Court of Appeal Somervell L.J. made the same points. He pointed out (1952) 1 KB, at p 251 , and again (1952) 1 KB, at p 251 , that the question whether the wife's covenant "voided the whole deed" had not arisen for consideration and added that "the doctrine of severability being applicable might well have prevented the whole agreement from being regarded as void. The main subject of the agreement was the separation. The possibility of divorce was remote and seemed to depend on a change in the law. It might well, in these circumstances, be held to be subsidiary and 'severable'". Denning L.J. (1952) 1 KB, at p 261 , drew attention to the fact that the deed was a deed of separation and pointed out that in such case the substantial consideration for the promise by the husband might well be the agreement to live apart and that in these circumstances the husband's promise would be severable. That, his Lordship thought, was "implicit" in the speeches in Hyman's Case (1929) AC 601 . He went on to say (1952) 1 KB, at pp 262, 263 , that in the case of an agreement for the payment of alimony upon the dissolution of a marriage different considerations arose since if a promise by the wife to accept agreed payments in settlement of any claims she might have for alimony was void, that promise might well form the whole or substantially the whole of the consideration for the husband's promise to make the agreed payments and, in such case, "if her promise does not bind her, then his should not bind him". He went on (1952) 1 KB, at pp 262, 263 :
deed would have been severable from the husband's promise;
this may explain, if any explanation be needed other than the
fact that the point was not under consideration, why some of
their Lordships, particularly Lord Atkin, referred to the
husband's promise in that case as being still alive."
"If the parties do not oust the jurisdiction of the DivorceCounsel for the appellant placed some reliance upon this passage in support of a submission made by him that, assuming cll. 1 (b) and 2 to have been invalid when the deed was executed, the recital in the decree nisi that the deed had been approved had in some way had the effect of validating covenants which up to that time had been invalid. But what his Lordship said in the passage last quoted is not, in my opinion, to be read as meaning that the mere approval by the Court of an agreement for alimony made between husband and wife validates that which the law regards as invalid. I think that what his Lordship meant was that if an agreement for alimony was made by the parties subject to the approval of the Court, the Court, assuming that it had jurisdiction to do so, could, if it thought fit, make an order in terms of the agreement in which case it would be the order of the Court and not the terms of the agreement that would be binding and enforceable. This was the view of his Lordship's remarks which commended itself to the Full Supreme Court of New South Wales in Shaw v. Shaw (1965) 66 SR (NSW) 30 and Whittle v. Whittle (1965) 66 SR (NSW) 141 in which questions arose as to the effect of the Court "sanctioning" or "approving" an agreement for alimony or maintenance made between husband and wife which was void as purporting to oust the jurisdiction of the Court and I agree with their Honours. (at p482)
Court, but preserve it by making their agreement subject to
the sanction of the Court, then, once it is sanctioned, it is
valid. The Court, however, cannot and will not give its
sanction before decree nisi. It has itself no jurisdiction
before decree nisi to deal with permanent maintenance. Its
jurisdiction only arises 'on' the decree. Its sanction should,
I think, be obtained in this way: if the parties agree on a
figure for maintenance, the Court should be asked to make an
order for that figure; if they agree on a secured provision,
the Court should be asked to approve the deed which contains
the provision."
10. For the reasons I have stated I am of opinion that cl. 2 of the deed in the present case was void; that cl. 1 (b) shared the same fate because dependent upon the operation of cl. 2; and that if cl. 1 (b) could not have been enforced against the deceased, it cannot now be enforced against his executors. I am also of opinion that the "approval" of the Court recited in the decree nisi did not operate to validate those clauses. The decree did not purport to substitute an order of the court for the deceased's covenant in cl. 1 (b). (at p482)
11. One further matter remains for consideration. Counsel for the appellant put forward an argument that the respondent executors are in some way estopped from setting up the invalidity of cll. 1 (b) and 2. If I understood the submission correctly, it was that they are estopped from contending that the "approval" of the Court recited in the decree nisi did not validate the relevant covenants in the deed. Alternatively it was said that, by making the agreed payments to the appellant during his lifetime the deceased was estopped - and his executors are now estopped - from contending that those covenants are invalid. (at p482)
12. Neither of these submissions can be upheld. It is impossible, in my opinion, to find in the present case the elements necessary to create an estoppel. And, apart from any other consideration, I do not think that the doctrine of estoppel can be invoked so as to prevent a court from considering whether a contractual provision is invalid as being contrary to public policy. (at p482)
13. I would dismiss the appeal. (at p482)
ORDER
Appeal dismissed with costs.
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