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Published: Wed, 07 Mar 2018

Hyman v Hyman [1929] AC 601

Courts will not enforce contracts which frustrate Acts of Parliament.


The appellant, Mr Hyman, was married to respondent. He left her to live with another woman. Both he and the respondent executed a deed of separation in which he covenanted to pay his wife £2000 alimony as well as a weekly sum of £20 for her maintenance during her life. The wife in return covenanted not to petition any court for further alimony or maintenance other than the sums that had already been agreed. After divorcing her husband, she petitioned the court for maintenance. At first instance the court ordered that the deed did not prevent the wife from claiming maintenance. The husband appealed.


The ex-husband argued that the respondent was still bound by her covenant in the deed of separation not to petition the court for permanent maintenance even though they had divorced. He also argued that public policy required that contracts should be kept and covenants honoured, and that he was simply keeping his ex-wife to her bargain.


Their Lordships held that there was no provision in the covenant terminating it on dissolution of the marriage. Therefore, it still operated. However, Lord Hailsham said that under the Judicature Act 1925  s.190(1), a court had discretion to make an order granting such sums of maintenance as it thought reasonable and order payment of alimony that it thought just.  The agreement in the deed amounted to a covenant not to bring proceedings. This would have ousted the jurisdiction of the court to make such orders. Therefore, it was illegal and invalid. Consequently, the appeal was dismissed.      

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