Immediacy

In order to effect a valid separation agreement it was held by the courts that this must be immediate; any contract in anticipation of a future separation was void. In the early

case of Gawden v Draper,300 _{where an agreement of a £300 yearly maintenance to be}

paid quarterly was agreed between the parties, this could not be revoked by a later indenture which added the requirement that the plaintiff must not cohabit with another. Indeed, when the plaintiff in this case brought the action for an unfilled payment of £75 for the previous quarter, the defendant sought to invoke this later indenture as the reason as to why the agreement was no longer valid. The court delivered its judgment based

upon considerations regarding the formalities of the contract, notably that the ‘later

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covenant cannot be pleaded in bar of a former’.301 _{In other words, the later requirement} of no cohabitation, being additional to the initial agreement, could not therefore take

precedence over the original separation agreement. The action in Gawden involved a

separation agreement which had been drafted and carried out with immediate effect, but a later case demonstrated that this immediacy was crucial to the validity of such a contract.

Cartwright v Cartwright302_{concerned a deed executed by a father, which provided that}

should his son and daughter-in-law separate, the rent and profits obtained from the father’s freeholdings ought to be paid to his son. On the 10th _{July 1839, prior to the} marriage of his son, Henry, Thomas Cartwright executed a settlement for the benefit of Henry and his future wife, Ellen, as well as any future children to be born from the marriage. The deed also contained a provision that should Henry and Ellen separate, the rent and profit from the freehold properties would pass solely to Henry. Henry and Ellen married and lived together until 1846, when Ellen left the home and the pair lived separately. The couple were living apart when Thomas Cartwright died in 1851 and Henry brought an action against the trustees for the payment of the rent and profits. At trial, the court was asked to determine the legality of the separation agreement contained in the deed.

301 _{ibid 403}

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Knight Bruce LJ found ‘the theory of the law to be, that a man and his wife cannot live in a state of separation from each other… without some failure on the part of one or both in the performance of duties in the fulfilment of which society has an interest’,303 _{as such}

the agreement had to be void as ‘such a proviso is against public policy’.304 _{Turner LJ}

then went on to discuss the case law which had been relied upon in the case, notably Brown v Peck305_{and Westmeath v Westmeath,}306 _{and came to the same conclusion, that}

the agreement ought to be void. It is evident here that the courts found such contracts to be void as they offended against the promotion of marriage and interfered in the performance of marital duties. Clearly, the courts were relying upon the very same public policy grounds as those noted in the previous chapter in relation to restraint of marriage and marriage brokerage. Marriage was important to a civilised society and the law wished to promote this, and so a contract which anticipated the breakdown of such marital relations, and furthermore, provided for payment of a large sum should this occur, was prohibited by the courts.

Of the two cases discussed extensively in Cartwright, that of Westmeath v Westmeath

will be discussed shortly in greater detail, given that the facts of this case are particularly telling of the circumstances surrounding separation in the long eighteenth century. Before that, however, it is acknowledged that the voidability of contracts based on

grounds of public policy is further evidenced in a second case addressed in Cartwright,

303 _{ibid 387 (Knight Bruce LJ)} 304 _ibid

305 _{(1758) 1 Eden 140; 28 ER 637} 306 _{(1830) I Dow & Clark 519; 6 ER 619}

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namely Brown v Peck. In Brown, an uncle left a devise to his niece in his will of £2 per

month should she continue to live with her husband, but £5 should she live apart from him. This was on the basis that she had married him without the consent of her mother. Upon the question of the validity of this provision, it was held that the condition was ‘both impossible at the time of imposing it, and contra bonos mores’307 _{and was therefore} void. With the cases explored above, separation agreements which were made prior to

the marriage occurring, such as in Cartwright, or in anticipation of the separation as in

Brown, were held as void based upon public policy reasons. This rested on the notion that agreements made prior to marriage introduced a negative incentive on the parties to renege on their marital duties if they were aware that upon separation a sizeable sum had been settled to ensure their maintenance. Again, the law wished to uphold the sanctity of marriage, and so agreements such as these which countered this motivation were not upheld.