A WIFE’S CLAIM

Waikato Times, Volume 121, Issue 20350, 15 November 1937, Page 4

A WIFE’S CLAIM

PECULIAR AGREEMENT LEGALITY CHALLENGED (Times Air Mail Service) LONDON, October 14. An agreement under which, it was stated, a married woman was to receive an allowance of £4 a week, a condition being that she persuaded her husband to go to New Zealand, was discussed in the King’s Bench Division to-day, says the Evening Standard. The court argued a preliminary point of law In an action brought by Mrs Mae Alice Davies, of Bella-Vista, Shrewsbury, against Mr Allan Melrose Elmslie, of Parliament Street, Westminster. Mrs Davies claimed £32 arrears of allowanoe under an agreement made between the parties in January, 1936, and a declaration that she was ©hTitled to be paid by 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. In the statement of claim it was alleged that in consideration of the agreement, Mrs Davies persuaded her husband to go to New Zealand, and had since then foregone consortium with him. Paid For Year It was also alleged that Mr Elmslie paid the allowance for a year, but had refused to continue it. Mrs Davies said she had always been ready to rejoin her husband. Mr R. A. Wfllea, who appeared for Mr Elmslie, contended that such an agreement was illegal if the consequences were that the wife could not thereafter demand her conjugal rights. A oontraot which contemplated the future separation of married persons who, at the time it was made, were living together, was illegal. It gave the wife the option to take money instead of her legal rights. Sir Reginald Coventry, K.C., for Mrs Davies, submitted that the agreement was a perfectly ordinary and simple one suoh as occurred every day when a married man went abroad to seek work and someone had to provide for his wife. To Provide Maintenance The agreement was made, not to separate them, but to provide maintenance for the wife during the temporary absence of the husband. Mr Justice Lewis.—l am not going to assume for one moment that there is any suggestion of immorality in this case at all. Sir Reginald said that If Mr Willes were right, no father could help his son in this way. These agreements were the commonest form of agreement., and were drawn up every day. “This contract was drawn up by the defendant’s own solicitors,” he went on. “The defendant is, we have every l reason to believe, a man of honour and integrity and the tactics adopted to defeat this lady's claim are not his taotlcs. “They are the tactics of someone behind the scenes of whom we know nothing.” JUDGE’S DECISION NOT AGAINST PUBLIC INTEREST HYPOTHETICAL CASE LONDON, October 15 Mr Justloe Lewis told a story putting a hypothetical case when he gave Judgment in the King’s Bench Division on the preliminary point raised in the oase of the wife who was said to have persuaded her husband to go to New Zealand. Ho said that Mr Allan Melrose Elmslle, of Parliament Street, S.W., had not satisfied him that an agreement with Mrs Mae Alice Davies, of Bella Vista, Couthorno, Shrewsbury, was void, as being against public policy. Judgment was entered for Mrs Davies with costs, and leave to appeal was granted. Mr Justice Lewis, In the King’s Bench Division, to-day gave judgment on a preliminary point. It was suggested on the preliminary point of law to the action that a contract made in relation to married persons living together which contemplated, as a consideration of the contract, their future separation, was void as being against public policy. Sought Declaration Mr R. A. Willes, for Mr Elmslie, had stated that in the statement of claim it was Ringed that in January, 1936, Mrs Davies and Mr Elmslie en-

tered into an agreement whereby, in consideration of Mrs Davies persuading her husband to go to New Zealand, and her consenting to forgo the consortium of her husband, Mr Elmslie promised to pay her £4 a week until lie paid her passage to New Zealand or paid her husband’s passage home. Mrs Davies alleged that Mr Elmslie ceased to pay the allowance on January 12, 1937, and claimed £32 arrears, and a declaration that she was entitled to payments as agreed. Giving judgment on the preliminary point, Mr Justice Lewis said Tie was not entitled to inquire into the motive which actuated the parties in making the agreement. All he knew was that Mrs Davies was a married woman whose husband left this country in January, 1936, and that Mr Elmslie was apparently no relative of either of them, though in the defence he suggested that he was the agent of the husband’s mother. Husband’s Opportunity “As pleaded, the contract may be interpreted as being in no way contrary to public policy, but on the other hand it may have a very sinister significance,” continued Mr Justice Lewis. “If the argument for the defendant is right, it seems to me that an agreement in the following circumstances would be held to be void as against publio policy: “A father has a daughter who is married. The husband is devoted to the wife, and the wife is devoted to the husband. “The husband gets an opportunity of good employment in some part of the world where it Is almost impossible for a white woman to live. “The employment is for two years, and because of his devotion to tho wife the husband, though realising that the employment will stand him in in good stead for the future, says he will not lakd it because he doe’s not like parting from his wife. “If You Will Persuade Him— ’» “The wife, who does not want a parting, realises, as does the father, ' that the opportunity would be the making of the husband, who says he i cannot afford to keep up two establish--1 ments. “The father then says to the daugh-, ter: ‘lf you will persuade Jack to take this job, and live apart from him for two years, I will see you don’t starve, and will make you an allowance of £'s a week.’ “I confess that, unless I was bound so to hold, I would not have thought that sort of agreement was void as against public policy.” It was clear, added the Judge, that there was no general principle of public policy that no contract was enforceable which was inconsistent with the obligations of the marriage tie. It might be that the contract meant that the defendant was paying the plaintiff £4 a week to separate from her husband so that he might live with her in adultery. He was not saying that that was the case. On the other hand, it might be similar to the hypothetical case he had given. “It seems to me,” said Mr Justice Lewis, “that, having no evidence before me as to the motive which actuated the parties in making this agreement, I must say that the defendant has not satisfied me that this agreement is against public policy.”