BREACH OF PROMISE

Evening Post, Volume CXX, Issue 144, 14 December 1935, Page 18

BREACH OF PROMISE

AX ACTION FAILS

WHEN A PLEDGE IS VOID

By a majority (Lord Justice Greer dissenting) the English Court of Appeal recently decided that a promise to marry is null and void in law when it is made after a decree nisi for divorce has been granted, but before that decree has been made absolute (says the "Daily Telegraph"). The Court was composed of Lords Justice Greer, Slesser, and Greene. The point arose in the appeal of Miss Emily Fender, a former State registered nurse, against a decision of Mr. Justice Hawke'that she could- not. recover £2000 damages assessed by the jury in a breach of promise action sh-e brought in the King's Bench Division last May against Sir Anthony St. JohnMildmay, The. Cottage, Baker Street, London. It was this decision the Court now upheld. On behalf of Miss Fender, Mr. Eddy asked for leave to appeal to the House of Lords. Lord Justice Greer: We think this j is a case which might properly be considered by the House of Lords. Sir Anthony had admitted the pro- i mise to marry Miss Fender —and the' breach of that promise—but it was argued on his behalf that the promise was void in law. The case involved the legal. proposition that a promise by a husband is against public policy as tending to cause him to disregard the genera] rules of morality. NOT BOUND. Mr. Justice Hawke had given judgment for Sir Anthony, stating that he was bound by authorities in such cases. His lordship said he felt himself compelled to hold . that Sir Anthony's marriage to the first Lady Mildmay was still subsisting till the divorce decree was made absolute. Lord Justice Greer, giving judgment, said the exact question had never arisen before, in this country. Sir Anthony St. John-Mildmay was a baronet, a man of position, and of substance. He had made any marriage to Miss FenSer impossible by marrying another woman. - "It seems to me," continued his lordship, "that a decree nisi makes vital changes in the relations of spouses, and, as long as it is in force, it relieves both the parties of most obligations which married persons owe to one another. A decree nisi puts an end to the whole of the marriage contract, leaving only the shell. In,the vast majority of cases decrees • nisi are in due course made absolute. "I cannot myself see that- if, after a decree nisi is granted,, a promise to marry is made, such a promise is contrary to public policy. If such a promise be.made to a third person who is not a party to the divorce proceedings, and, who is perfectly innocent, it is impossible to say that such a promise would tend to cause immorality. In certain circumstances it might tend to produce the opposite tendency, for the persons would not be tempted to indulge in . any illicit-intercourse before the time when such intercourse would be lawful." Lord Justice Greer. asked what a man was to do if, after the granting of the decree absolute, the woman asked hini .''Will'you' marry me?" - : Was

it in the interests of morality andi public decency that he should say "No"? By saying that he might mean that he preferred to maintain the status quo and continue to have the woman living with him as his mistress. It might mean that he preferred to retain his freedom and marry someone .else. "In ray judgment," concluded Lord Justice Greer, "I think the promise of marriage in this case after the decree nisi was not invalid and that appellant is entitled to the damages the jury assessed. If my view prevailed, the judgment would be set aside, witn costs, and judgment would be entered for appellant for £2000 damages, but, inasmuch as my brethren take a different view, the appeal must be dis- j missed. | LAW AND MARRIAGE. Lord Justice Slesser stated the reasons why.-he thought the appeal should be dismissed. "In my opinion it is impossible," he said, "having regard to the decision of this Court in Wilson v. Carnley (1908) following a judgment of Mr. Justice Phillimore, as he then was, in Spiers v. Hunt, to hold otherwise than that a'promise to marry being made by a man, married to the knowledge of plaintiff, is unenforceable as a legal contract in law on the ground that the entertainment of such an action, based upon such an agreement, -would be contrary to public policy. : "I think it is right to say the law has always looked with disfavour on agreements which tend to produce separation or to protract separation between husband and wife. Between the period of the decree nisi and the decree 'absolute there is nothing in the law dealing with dissolution of marriage to prevent spouses from resuming cohabitation. "During the six months between the decree nisi and the application to make that decree absolute, the law allows the parties to take the proper steps to rescind the decree, and so j enables them to resume their full matrimonial relation. Next, it is clear that the law has always favoured such a resumption of the matrimonial life, notwithstanding that the parties have separated and one of them has taken proceedings in divorce. "A REAL HINDRANCE." "In my judgment such a promise as defendant here has made must necessarily tend to prevent reconciliation between separated spouses. I think it is evident that the promise made must be a real hindrance to the spouses' resuming their normal matrimonial life, and, as such, I think it is contrary to public policy. "There is no doubt that the mere granting of a decree nisi does not put an.end to marriage. It is clear that, though certain incidence of marriage may have been varied from time to time by statute or by authority, the prime nature of the relation has not been essentially modified, and the desirability of the coming together of separated husband arid wife is as much held by the law today as at any previous period which we are called.upon to consider. • - . "In my opinion the learned Judge was right in holding that the agreement of defendant to marry plaintiff*'was void, arid, as Lord Justice Greene, is-of the like opinion, this appeal must be dismissed with costs."- .' '■■■'■;". Lord Justice Slesser ■ then; read the judgment of Lord Justice Greene,;who also expressed" agreement with the decision of Mr. Justice Hawke. A party was.,not. released.from obligations in the married state by a decree nisi; said Lord Justice Greene. It was. a duty to remain loyal until the making of the decree-absolute..:. .•,. .