DE KRETSER J.—Frugtneit v. Frugtneit.
1941Present: de Kretser J.
FRUGTNEIT v. FRUGTNEIT.
44—C. R. Colombo, 67,570.
Husband and wife—Agreement to live apart—Payment of monthly allowance towife and child—Agreement not terminable at option of party.
Where husband and wife entered into an agreement to live separatelyand the husband agreed to’ pay the wife a monthly allowance for thesupport of herself and their child,—
Held, that the agreement was not terminable at the option of one ofthe parties.
PPEAL from a judgment of the Commissioner of Requests, Colombo.
H. V. Perera, K.C. (with him H. W. Thambiah), for defendant, appellant.F. C. W. Van Geyzel, for plaintiff, respondent.
Cur. adv. vult.
September 4, 1941. de Kretser J.—
Plaintiff and defendant, who are wife and husband, on June 17, 1937,entered into the agreement (PI) which recited that unhappy differenceshad arisen between them, that the defendant had been sued by the plaintifffor a judicial separation, that they had agreed to live separately fromeach other and that the defendant had agreed to pay plaintiff a monthlyallowance for the support of herself and their child. The agreementprovided that in the event of their agreeing thereafter to live together andcohabit as husband and wife, then in such case the allowance should beno longer payable and all the covenants of the agreement should be void.
Thereafter the plaintiff brought an action on March 27, 1939, seeking adivorce, and the defendant filed answer alleging that it was the plaintiffwho had maliciously deserted him, that living with her was insupportableand dangerous to life and limb, and himself praying for a divorce. Onthe trial day plaintiff moved to withdraw the action, having realized thatshe could not prove malicious desertion as the parties .had separatedvoluntarily. An attempt was made to proceed with the action as one forjudicial separation and a discussion followed. Thereupon plaintiff’sCounsel moved to withdraw the issue he had suggested, viz., whether, theparties having entered into a mutual agreement, the plaintiff was entitledto a decree for judicial separation. In the course of the discussion Counselfor defendant, who had objected to the issue, stated that it was nota matter for the Court as there was already a deed ; he also stated thatdefendant was quite prepared to remain separated. As plaintiff with-drew her claim, defendant withdrew his claim for a divorce. Both claimand counterclaim were therefore dismissed.
On the very day this happened, March 18, 1940, defendant sent letterD 2 to the plaintiff. It runs as follows : —
“ Dear Lilian,—This is ta give you notice that I desire you to comeand live with me. This is best in your interest, in my interest andmore than all in the interest of our child. The incidents of December,1938, make it perfectly clear that you were not keen about resumingmarried life. I can assure you that in the event" of your coming backto live with me, I shall provide you with all facilities to live separately.
DE KRETSER J.—Frugtneit v. Frugtneit.
I am making this offer in the interest of our daughter who is nowgrowing to be a woman. You are hereby to take notice that no further
allowance will be paid to you. Yours sincerely,
It will be observed that both at the beginning and at the end of theletter he gives his wife “ notice ”. He invites her to come back andoffers to provide her with “ all facilities to live separately ”. There isnot a pretence of any affection for her nor any desire expressed that theyshould resume marital, relations. Considering that defendant hadhimself asked for a divorce, there is no reason to believe that he desiredthe consortium of his wife. The trial Judge held that the defendant’soffer was not made in good faith and I see no reason to disagree with hisviews.
Various defences on the law were taken in the lower Court, but beforethis Court the only question raised was whether the agreement (PI) wasone which could be enforced when one of the parties wished to resile fromit. Mr. Perera for the appellant would not question the validity of theagreement, in view of the decision of the Privy Council in Soysa v. Soysa' ;his contention was that while the agreement was valid so long as therewas mutuality and while it might be enforced regarding arrears of moneywhich had accrued before one of the parties desired to resile from it, itwas terminable at the will and option of-either party, quite irrespectiveof the motive which prompted the party to act in that way. He basedhis contention on an obiter dictum of Pereira J. in Silva v. Silva and onan article by a Professor of Roman-Dutch law at the University ofAmsterdam, reported in 1917—S. A. Law Journal, XXXIV., 11. It willbe convenient to take the Professor’s opinion first, for it includes the viewexpressed by Pereira J. and deals with the matter more fully than he didin a passing opinion. Besides, Perera J. doubted the correctness of thedecision of this Court in Soysa v. Soysa and his opinion was expressedduring the pendency of the appeal to the Privy Council, which upheldthe view expressed by, this Court. In my opinion the decision of thePrivy CounciLcemoves the question from the region of doubt.
The Professor quite clearly considers that an extra-judicial separationis entirely void. He states (at page 33) : “ Now to my mind this wholefabric of the legal institution of a private separation from bed and boardresets on no authority or legal ground whatsoever. It is based on a disregardof the public character of the marriage contract and on the false suppositionthat, in this respect, spouses may freely contract with each other.Marriage is a matter of too much -public concern than thatthe parties should be allowed to put an end to the relation and dutiescalled into being by effect of law ”. He puts such an agreement on the samefooting as an antenuptial contract that the parties should live apart fromeach other. He cannot see any distinction between the two cases,, andhe assumes that such an antenuptial contract would be entered into onlybecause parties were convinced that cohabitation would be unbearable.The agreement then, according to him, is void on grounds of public policy.But he is faced with the fact that in South Africa the Courts have recog-nized the validity of such agreements and have refused restitution ofconjugal rights. He refers to a number of cases, quite plainly hints that1 19 N. L. if. 146.* 18 N. L. R. 2C.* 17 K.'L. R. 385.
DE KRETSER J.—Frugtneit v. Frugtneit.
they were based on insufficient authority, and infers that they were mostprobably influenced by English authorities. Referring to the opinion ofSir James Hannen, President of the Court of Probate expressed inMarshall v. Marshall', that it was in the highest degree desirable for thepreservation of the peace and reputation of families, that such agreementsshould be encouraged rather than that the parties should be forced toexpose their matrimonial differences in a Court of justice, he thinks thereasons so given insufficient for recognizing such agreements and suggestsas a via media that the Courts should adopt a policy of readily allowingthe confirmation of such deeds of separation entered into by mutualconsent. The position boils down to this, viz., which aspect of publicpolicy should be allowed to prevail, that which Sir James Hannenindicated or that which the Professor supports.
Now we have been in the habit of following the decisions of the SouthAfrican Court, and, if I may say so with all respect, their view on thismatter is more in accordance with modern ideas. It must also beremembered that we have now no community of property between spouses,that a wife has a separate estate, and that donations betweenspouses are allowed. The matrimonial rights of parlies are now governedby the Ordinance of 1876.
Sampayo J. in Soysa v. Soysa (supra), doubted whether the Roman-Dutchlaw any longer applied. The Privy Council thought it did not. It istrue the Privy Council was not faced with the position that one of theparties wished to resile from the contract during the subsistence of themarriage, but a close analysis will, I think, lead to the conclusion thatonce it is held that the agreement is enforceable it must necessarily followthat it was enforceable when one of the parties wished to depart from it,for while there was mutuality there would ordinarily be no question ofenforcing the contract. I can see no objection to a husband entering intoan agreement with his wife to pay her a certain sum monthly, and if suchan agreement were good while they still lived together I fail to see why itshould not be good when they lived apart. What the Professor wasconcefned with was the personal relations of husband and wife, but wedo not recognize an action for restitution of conjugal rights and conse-quently, however, much the Courts may disapprove of the agreement,the parties would still live apart.
Again, the Professor clearly contemplates a genuine desire on the partof one spouse to resume marital relations with the other. A Court maylook with favour on such a desire and may, if it had the power, decree arestitution of conjugal rights. But when, as in the present case, there isno such genuine desire and merely an attempt to escape from pecuniaryliability, I do not think a Court will view an application like that of thedefendant with anything but disfavour. I do not think any Court willforce a wife to live under the same roof as a husband who expressly statesthat there is to be no consortium and who had just previously sought adivorce.
In my opinion the Commissioner has arrived at the right conclusion.The appeal is dismissed with costs.
1 L. It. 5, Prob. Div. 19.
FRUGTNEIT v. FRUGTNEIT