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Popiw v Popiw [1959] VR 197

Promise to transfer matrimonial home into joint names; whether intention to create legal relations

Facts

Mrs Popiw left her husband and to encourage her to return home, he promised to transfer the matrimonial home into their joint names if she returned to cohabit with him. Mrs Popiw returned and they both attended a solicitor to discuss their arrangement. Four weeks later, Mrs Popiw left her husband again, and she sought to recover a half share of the matrimonial home based on Mr Popiw’s promise.

Issues

Mr Popiw contended the arrangement was a domestic agreement between husband and wife and there had been no intention to create legal relations and, as such, there was no enforceable contract. He also argued Mrs Popiw had not provided any consideration for his promise because she was already under a legal duty to live with him as his wife. Mrs Popiw sought to argue there had been an intention to create legal relations, as evidenced by their having attended a solicitor and there was, therefore, a legally enforceable contract affording her a half share in the matrimonial home.

Held

Mr Popiw’s argument that there was no valid contract was unsuccessful. The fact that they had attended a solicitor strongly indicated an intention to create legal relations. The agreement was outside of the usual matrimonial context because Mrs Popiw had left the family home. As Mr Popiw had no legal remedy to enforce his wife to return to him, her having come back to the family home could amount to good consideration. Mrs Popiw’s claim failed, however, because she sought to rely on an affidavit which was not in existence at the time proceedings were commenced and she was, therefore, unable to rely on it.


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