WARD CJ:
The plaintiff claims specific perfoperformance of a written agreement. She is the
wife of the defendant and, following
a breakdown in their relationship, they
entered into a Separation Agreement on 23rd September 1988 which
provided, inter alia, that the defendant should pay the wife half his net
monthly salary for the
maintenance both of her and their adopted daughter,
Rebecca. It is agreed such payments amounted to $1500 per month.
<
Payments were made at that rate
until the end of July 1989 when the defendant reduced the payments to $750
per month.
The plaintiff sues for the balance for the months of August to
November and specific performance of the agreement.
The defendant claims that
clause one of the agreement is contrary to public policy on the grounds that
it is sexually
immoral and is therefore void. In the alternative, he pleads
that the wife has breached clause 4 by cohabiting with another
man thus
allowing reduction of the payments. He counterclaims on the same grounds and
prays for an order that the agreement
be terminated.
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The agreement entered into by
the parties, as far as is relevant, is asows:
"WHEREAS unhappy differences
have arisen between the parties hereto by reason whereof they have agreed to
live separately
and apart from each other and to enter into arrangements
after appearing.
Now this Agreement Witnesseth:
1.
;
/ The said Mary Winefride
Gavin may at all timesafter sepaand afrom usban
if she were unmarried, may live at e at such such
placeplace or p or placeslaces and and be engaged in
such activities as she may think fit.
2.
p; &nsp;
As far as is possible,
the wife aughter Rebecca shall not move out from their present
accommodation until such time asme
as the wife has managed to organise suitable
alternative accommodation.
3.
& p; &nsp;
sp;
The parties shall not
molest, annoynywayrfere with each other with respect to anything
whatsoever.
4.
n style="font-size: 12.0pt"> &nbbsp; &bsp;&nbp;
p The husband shall pay to
the wife and daughter Rebecca by way of maintenance half his net monthly
salary, which shall
be rded e husto the wife wife monthmonthly
ly
promptly in
arrears to her last known place of residence or according to her last
written instructions. If however, Mary Winefride
Gavin cohabits, receives
support from another man or re-marries in the future, then Robin Michael
Richardson Gavin's
maintenance payments shall be reduced accordingly.
p; &n sp;
The said Mary Winefride
Gavin shall have custf theughteecca,the husband shall
have reasonable access to Rebecca fora for
peri periods aods agreedgreed between the parties."
Pro the agreement, the
defendant had moved into the servant's quarters leaving the hous house to his
wife but, after the
agreement was made, the plaintiff left the matrimonial
home in December 1988 and moved to accommodation provided by her employer
in
White River.
It is admitted that, during the
time she lived at White River, she started a sexual relahip with
another man. man. Up
to 1st April 1990 he visited her at her house and
sometimes stayed the night with her. On 1st April 1990 she moved
into a house with him and has continued to live with him to the present
time.
Whilst she was living at White
River, the defendant wrote to her stating that:-
“I aised that since I have
strong evidence that for considerable periods you have been inen in breach of
Clause 4 of the
Separation Agreement, I should reduce the monthly
maintenance. I am advised to provide support for Rebecca in the sum of $750
until the sum is decided by the Court which will happen as part of the
Divorce proceedings which you state you intend
to institute.
My cheque number 248204 in the
sum of $750 is enclosed fo benefit of Rebecca."
There is no dispute about these
facts and Mr. Nori, for the defendaases his case on two pointsoints.
The first is that clause one of
the agreement is illegal because it encourages adulter as such is
contrary rary to public
policy. He urges on the authority of Goodinson v
Goodinson (1954) 2 All E.R. 255 that such a contract falls within the
category of illegal contracts that are contra bonos mores. If that is so,
the agreement
as a whole must be tainted and cannot be saved by the deletion
of the phrase in clause one that allows the plaintiff to live
separate and
apart from her husband "as if she were unmarried".
I accept that contracts t are sexually immoral would be contrary to public policy but I do not feel
this ihis is such an
agreement. Had it been an agreement that the wife would
commit adultery under the agreement and was intended to bring that
about, it
could fall into that category but that is not the meaning of clause one as I
see it. Allowing her to live as
if she were unmarried may mean she will have
a sexual relationship with a man other than her husband but it is a clause
that refers to a far wider concept. I do not accept that such a phrase
necessarily anticipates such an event and I reject
the defence claim.
However, the law has also long
recognised a form of illegal contract that does not convey the same sense of
illegality
as does a contract that is sexually immoral. A contract that
tends to prejudice the status or sanctity of marriage falls into
such a
category and may be void as a result. Separation agreements were once held
to fall into such a category but it
has been the law for over a century now
that such agreements based on an immediate separation that occurs or one
that
has occurred are valid and enforceable.
Clearly public policy in
Solomon Islands is to respect and supthe sanctity of marriage. Age. A
separation agreement, breaking
as it does the consortium of marriage,
conflicts with that public policy but the common law has taken a realistic
view
in cases as this where the marriage has, in fact, broken down.
Consortium in marriage embraces
such things as love and affection between the husband and wife. It allows
companionship,
sexual intercourse, comfort and protection. Once a marriage
has broken down and the parties separate, those ingredients are
lost.
<
In dealing with the situation
after decree nisi, Lord Atkin in Fender v Mildmay (1937) 3 All E.R.
402 at 410 described the position in this way:
"It is said that the status of
mae exists until decree absolabsolute. Of course it does. It is said that;
if either
of the spouses has immoral intercourse with a third party, he or
she commits adultery. Certainly. That follows from the continued
existence
of the status of marriage. But let us consider how far the normal
obligations and conditions of marriage continue
in ordinary circumstances,
after decree nisi. They have disappeared. There is no consortium, and the
parties are living
apart. They owe no duties each to the other to perform
any kind of matrimonial obligation. ......... the petitioning spouse
has
said:
“I have done with you.”
Later Lord Wright at 429 said:-
“If a separation has actually
occurred or become inevitable, the law allo allows the matter to be dealt with
according
to realities, and not according to a fiction”
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Turning to Mr. Nori’s point, he
acceptaration agreements as such are lawful but argues the licencicence, as
it were, to
live as if she were unmarried in this agreement takes the matter
further and attacks the sanctity of marriage. I am afraid,
I cannot agree
this takes the matter any further than any agreement to separate.
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The agreement was to make
provision for a marriage breakdown that had ay occurred. As Lord Atkin
kin
said, the consortium
was broken, they owed no duty to perform any kind of
matrimonial obligation. Such a situation means they are already to all
intents and purposes living as if they were unmarried. The law accepts
agreements to separate in cases where there is
already a breakdown and I
feel the phrase Mr. Nori attacks adds no more than that situation already
embraces.
I find against the defendant on
the grounds of illegality of clane of the agreement as a wh a whole.
The second point of defence is
that the plaintiff had breached the terms of clause that she was
cohabitiabiting with another
man.
Having heard of her
relationship, the defendant wrote to her about d, having received no
response, reduced the payments.
Mr. Nori urges that the provision in such
circumstances that the "maintenance payments shall be reduced accordingly"
then 'allowed him unilaterally to decide a reduction and pay at that rate.
He felt that half the agreed payments were
for the maintenance, of the wife
and half for the child and, therefore, stopped the former. Mr. Nori cites no
authority
for such a power and I am of surprised. The provision clearly
allows a variation in the payments but that cannot allow one
party
arbitrarily and unilaterally to shed his obligations.
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Even if the defendant had the
right to alter such payments, it is clear to me, on the evidence, that there
was no cohabitation
by the wife and the other man until 1st April
1990 when they moved in together. Prior to that there was nothing to suggest
cohabitation involving, as it does,
the concept of living under a single
roof as one family and so the last sentence of clause 4 could not have any
effect
until the date in April when that occurred.
The counterclaim fails.
The facts of the plaintiff's
case are admitted except for the matter of cohabitation and I find in the
plaintiff's favour
that there was no cohabitation before April 1st.
I give judgment for the
plaintiff.
The defendant is to pay the
shortfall in the payments made between August and November 1990 which totals
$3000 and interest
at 10% per annum.
I order specific performance of
the agreement to pay maintenance at the rate of half the defendant's net
salary per month.
Costs to the plaintiff.
(F.G.R. Ward)
CHIEF JUSTICE
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