INTERESTING CLAIM

Otago Daily Times, Issue 23348, 13 November 1937, Page 5

INTERESTING CLAIM

PARTED HUSBAND AND WIFE CONTRACT SAID TO BE ILLEGAL JUDGE TAKES DIFFERENT VIEW (From Our. Own Correspondent) (By Air Mail) LONDON, Oct. 26. A woman's claim for maintenance from another man during her husband's absence in New Zealand was heard in the King's Bench Division this week. It was argued before Mr Justice Lewis that a contract which contemplated the separation of a husband and wife was void, as being contrary to public policy. The question was a preliminary point raised by the defendant in an action brought by Mrs Alice Davies (Shrewsbury) against Mr Allan Melrose Elmslie (London). Mrs Davies claimed £32 arrears of allowance under an agreement made between the parties in January, 1936. She also asked for a declaration that she was entitled to receive from Mr Elmslie a weekly allowance of £4 until either her passage was paid to New Zealand to rejoin her husband, Mr Hugo Harold Davies, or his passage was paid for him to rejoin Mrs Davies in England. The statement of claim alleged that in the agreement, made in January, 1936, the weekly allowance was promised to Mrs Davies in consideration of her persuading her husband to go to New Zealand and consenting to forgo the consortium of her husband. It was also alleged that Mr Elmslie paid the allowance for a year, but had refused to continue it. Mrs Davies had always been ready to rejoin her husband. Mr R. A, Willes, for Mr Elmslie, contended that such an agreement was illegal. '"•"■'. ,'l , j The preliminary point to be decided was whether, as the defendant contended, the agreement was unenforceable because it was against public policy.. .... • Mr Justice Lewis, m a considered judgment, decided in favour of the plaintiff, and ruled that the contract was not void as against public policy or based on illegal consideration. Leave to appeal was granted. " SOMEONE BEHIND THE SCENES"

When the point was being argued, Sir Reginald Coventry, K.C., for Mrs Davies, said: " This contract was drawn up by Mr Elmslie's own solicitors. We have eVeiy reason to believe that he is a man of honour, and the tactics adopted to defeat this lady's claim are not his. They are the tactics of someone behind the scenes, of whom we know nothing." ..'„-„ Sir Reginald added: "We come here only because the judge in Chambers has got. into his head that plaintiff and defendant are living in adultery while the husband is away. That is as far removed from the truth as anything that can be imagined. The whole object was to provide maintenance for the wife and nothing else, the husband having gone abroad to find wor'k." Mr Justice Lewis remarked that he would not assume for one moment that there was any suggestion of immorality. In his judgment, his Lordship said that the agreement was partly oral and partly in writing. As pleaded, it did not appear to him necessarily to contemplate complete separation of husband and wife. Of course, the wife at any time, by no longer agreeing to forgo the consortium of her husband, could go to her husband, thereby losing the £4 a week. On the other hand, the defendant, by simply paying the plaintiff's passage money or the husband's fare to England, could get out of paying the £4 a week and could ensure, so far as was humanly possible,, that the separation of husband and wife was terminated.

PROPOSITION PUT CONCISELY Mr Willes said that any contract In relation to married persons who were living together at the time of making the contract was void if that contract had contemplated their future separation. The inference from the statement of claim was that Mr and Mrs Davies were living together when the contract was made; that she had not forgone the consortium before January, 1936; and that it was not until the contract was made that she separated from her husband. , His Lordship said that he had no evidence whatever before him as to the motives which induced this agreement, and he knew nothing about the parties except what he gleaned from the statement of claim. There was no separation deed as between Mr and Mrs Davies. The wife was, and had always been, ready to join her husband, and what the husband's attitude was he did not know. He did not think that such an \ agreement would be void as against public policy. Having regard to the authorities he had come to the conclusion that in a case like the present, where the defendant was setting up the defence that the agreement was voidlf or illegal consideration and the court was in entire ignorance as to the circumstances, the defendant had to satisfy the Court, if there be no general principle of public policy involved, that the contract was contrary to public policy. It seemed to him that having no evidence before him at all as to the Sves which actuated the parties in making the agreement, he must come to the conclusion that the Soper thing to say was that he was not satisfied that in law this agreement was void as being against public policy. He could only infer that in so far as one of the tacts which he had to accept as true was that"he.plaintiff was, and always had been, ready and willing to live with her husband, from her point of view, at all events there was no desire to live apart from him. Therefore, the preliminary point must be decided in favour -of the plaintiff, and he ruled that the contract was not void as against public policy or based on illegal consideration.