Case Law

Bligh

Hi,

I have been doing some research on Case Law on BAILI, my question is probably very simple, but prepahps some one could explain, if it is poosible for a married couple to sue one another?

All the hight court cases I have found centre around family law, separation and divorce, but am interested in other cases were a spouse has been sued by a wfe or husband, in law is this possible?

Thanks

NoQuarter

You need to be a bit more specific when you talk about suing. What is the basis for the suit?

If its a contract, there is a presumption that there is not a prerequisite intention to create legal relations between the spouses so this in turn means that the contract is not legally enforceable. This presumption is rebuttable though but only in rare circumstances.

Bligh

I don't want to exceed any of the rules of the forum, so want to keep the topic as general as possible.

However let's say the facts were as follows,

Couple have financial commitment with a third partly, the couple part company but remain married

One spouse repudiates on contract to repay their part of the financial commitment leaving other spouse to pay full amount.

Apart from family law, is it possible to sue on specific performance or somthing similar.

I can see problems because the actual contract signed with the third party is not actually breached, just one party has not delivered on their commitment, leaving the other to carry the full weight of the payments. This seems to be an increasingly common delema in the current ecominic climate

Peregrinus

Yes, absolutely, a married couple can sue one another. Happens all the time, when one spouse is injured in a car accident caused by the negligence of the other. (Of course, there's an insurance company behind the defendant spouse.)

If spouses are in business together, then they can sue one another in exactly the same way as any business partners can. In the circumstances you outline, there is nothing to stop the spouse who has actually had to pay the debt from seeking a contribution from the other spouse.

Of course, there may be less point in suing, if the spouses own most of their property in common. Or, one spouse may decide not to sue because of the effect it will have on the marriage. Or, the close relationship between the spouses may make it easier to settle the dispute without recourse to the courts. But, in general, there is no legal obstacle to suing.

Procrastastudy

Google - Intention to create legal relations - for some more general info regrading contract and martried couples.

Victor

By virtue of being married, the vast majority of cases between married couples would be tainted by family law and/or the lack of intention to create legal relations. Most of the reaming cases would likely be (a) suing for insurance purposes or (b) suing a business that the spouse is part of.

Could one see a spouse suing their barrister spouse to claim off their insurance?

jblack

Bligh wrote: »

One spouse repudiates on contract to repay their part of the financial commitment leaving other spouse to pay full amount.

Firstly, a member of a party cannot "repudiate" a contract where the other member of their party adheres to the terms of the agreement.

Secondly, it is extremely doubtful that there would be a severable amount and therefore there is no "their part". They are J&S liable each separately for the full amount.

If there is a separate agreement between the spouses on how the loan is repaid, that rebuts the presumption of no ITCLR, then the terms of this may be enforceable.

dermot_sheehan

Traditionally at common law a married woman did not have legal capacity, it was subsumed into her husband's. The Married Women's Status Acts, the latest one being in 1957 changed this position and allowed a married woman to sue and be sued in the ordinary way for torts and contracts, including contracts with her husband.

There however is a rebuttable presumption that close family members do not intent to create legally enforceable agreements (Balfour v. Balfour), so unless this presumption is rebutted, no agreement between a husband and wife can be sued upon. This is why separation deeds are clear and state that the parties intend to create a legally enforceable agreement.

Bligh

Many thanks for the replies they are very helpful,

GCDLawstudent wrote: »

Google - Intention to create legal relations - for some more general info regrading contract and martried couples.

Thank you this reply was helpful and have found some case law that explains the situation.

By virtue of being married, the vast majority of cases between married couples would be tainted by family law and/or the lack of intention to create legal relations. Most of the reaming cases would likely be (a) suing for insurance purposes or (b) suing a business that the spouse is part of.

Victor good point, I am investigating the situation in relation to staying outside family law

Firstly, a member of a party cannot "repudiate" a contract where the other member of their party adheres to the terms of the agreement.

Jblack your are correct and my choice or words here was not very good, and I did think about the meaning of "repudiate" after I posted, but I just wanted to make the point that one member of the party had stopped paying.

I found Simpkins v Pays [1955] 1 WLR 975 - it's a UK case, it says that a ITCLR was formed between and family and a lodger (third party) over a wining prize ticket. In this case there was no signed contract between parties and it was an oral agreement that the winnings would be divided, the court held that this rebutted the presumption of no ITCLR.

If I apply this to the seneriao outlined in my previous posts, were there is a written contract with a third party (financial Instituation) and an oral agreement to pay, is it possible to sue? I do see the cavets in relation to proving ITCLR between a married couple.

Thanks again for the replies

Bligh

dermot_sheehan wrote: »

There however is a rebuttable presumption that close family members do not intent to create legally enforceable agreements (Balfour v. Balfour), so unless this presumption is rebutted, no agreement between a husband and wife can be sued upon. This is why separation deeds are clear and state that the parties intend to create a legally enforceable agreement.

Yes I see the point, but in Balfour v Balfour the agreement was soley between the husband and wife. The situation I am researching deals with a signed a agreement between Husband Wife and Bank.
But I do see the point that close family members do not intent to enter into such enforceable agreements.

However at the time both parties signed a legal agreement to repay a loan, now one of them has decided no longer to abide by that agreement leaving one spouse to service the payment alone, is there a point in time, when action towards that contact can be deemed to become an enforceable agreement and the no ITCLR presumption is rebutted?

jblack

Bligh wrote: »

Yes I see the point, but in Balfour v Balfour the agreement was soley between the husband and wife. The situation I am researching deals with a signed a agreement between Husband Wife and Bank.
But I do see the point that close family members do not intent to enter into such enforceable agreements.

However at the time both parties signed a legal agreement to repay a loan, now one of them has decided no longer to abide by that agreement leaving one spouse to service the payment alone, is there a point in time, when action towards that contact can be deemed to become an enforceable agreement and the no ITCLR presumption is rebutted?

You seem to be missing the points raised here, they are not referring to the agreement between the bank and the married couple but rather the agreement that may exists as between the husband and wife about repaying the loan. (I am using a loan agreement to a married couple as the paradigm)

Bligh

jblack wrote: »

You seem to be missing the points raised here, they are not referring to the agreement between the bank and the married couple but rather the agreement that may exists as between the husband and wife about repaying the loan. (I am using a loan agreement to a married couple as the paradigm)

Jblack, I see what you mean after taking a step back and reading the posts I see the point now.

It really would mean having evidence that the Husband and Wife entered into the contract with each other to profit from it and with the clear ITCLR.

I am looking at Merrit v Merrit and Dennings dicta

"The first point taken on his behalf by counsel for the husband was that the agreement was not intended to create legal relations. It was, he says, a family arrangement such as was considered by the court in Balfour v Balfour and in Jones v Padavatton. So the wife could not sue on it. I do not think that those cases have any application here. The parties there were living together in amity. In such cases their domestic arrangements are ordinarily not intended to create legal relations. It is altogether different when the parties are not living in amity but are separated, or about to separate. They then bargain keenly. They do not rely on honourable understandings. They want everything cut and dried. It may safely be presumed that they intend to create legal relations."

However in this case there was a signed agreement between the Husband and wife, in the situation I am researching there is no signed separation agreement.

Looking like this avenue of redress is closed

jblack

Bligh wrote: »

It really would mean having evidence that the Husband and Wife entered into the contract with each other to profit from it and with the clear ITCLR.

Just fyi:
Intention to make a profit is not necessary for the formation of a contractual agreement.

Victor

Assuming the bank loan is in arrears, there are two basic situations (a) the couple are in amity and one of them is simply being dilatory / negligent in their payments and the other is getting grief from the bank and (b) the couple are estranged, whether formally separated or not and whether still living in the property or not.

In (a), it is going to be very difficult and the only solutions might be to suck it up or to force a situation where the bank takes action against both parties. I wonder if a family law solution exists. Can a spouse be forced to support the other spouse? Will a court interfere in their domestic matters?

In (b), I imagine the best way to go would be to either go via the family law route or force a situation where the bank takes action against both parties.