Merritt v Merritt [1970] 1 WLR 1211

Husband agreed to transfer home to wife on separation; whether intention to create legal relations

Facts

Mr and Mrs Merritt married in 1941. They held their matrimonial home in joint names. In 1966 Mr Merritt left the family home to live with another woman. Mr Merritt agreed to pay Mrs Merritt £40 per month. At Mrs Merritt’s request, he signed a document confirming that when she had repaid the balance on the mortgage, he would transfer the matrimonial home into her sole name. Mrs Merritt paid off the mortgage and successfully acquired a declaration that the house belonged to her. Mr Merritt appealed.

Issues

Mr Merritt contended the agreement was a domestic arrangement between husband and wife and there was no intention to create legal relations and, as such, there was no enforceable contract. He also argued the purported contract was insufficiently certain to be enforceable by the court, and that Mrs Merritt had failed to provide consideration for his promise. Mrs Merritt argued that given they were in the process of separating, the presumption of there being no intention to create legal relations did not apply. She claimed there was every intention of creating legal relations, and her having paid off all the expenses on the home and finishing off the mortgage payments amounted to consideration.

Held

Mr Merritt’s appeal was unsuccessful. When parties are in the process of separating, or are separated, the presumption of there being no intention to create legal relations does not apply. The arrangement was sufficiently certain to be enforceable, and the paying of the mortgage was ample consideration for Mr Merritt’s promise. Mrs Merritt was entitled to the matrimonial home entirely.