ANCILLARY RELIEF/WILLS: Soulsbury v Soulsbury [2007] EWCA Civ 938

22 OCT 2007

(Court of Appeal; Ward, Longmore and Smith LJJ; 10 October 2007)

Following the end of a 20-year marriage the court made a periodical payments order in the wife's favour. Some years later, the wife agreed to waive her entitlement to the periodical payments on the basis of the husband's promise to leave the wife £100,000 in his will. The agreement between husband and wife was not put before the court, and had therefore not been approved. Nonetheless, the husband changed his will according to the terms of the agreement, and stopped making the periodical payments, while the wife made no attempt to recover such payments via the courts. The husband then, having become very ill, remarried, which had the effect of revoking his will. The husband died on the evening of the wedding day. The second wife refused to make any payment to the first wife on the basis that the agreement was unenforceable, applying Xydhias v Xydhias [1999] 1 FLR 683.

The agreement was perfectly valid and enforceable, as a classic unilateral contract. The agreement did not fall foul of the principles in Hyman v Hyman [1929] AC 601, because nothing in the agreement, express or implied, prevented the wife from applying to the court for relief; there was no promise not to apply to the court, merely an agreement that if the wife did not, she would receive £100,000. The statement in Xydhias as to the non-enforceability of an agreement for the compromise of ancillary relief applications, unless the agreement were converted into a court order, was not correct. There was no justification for denying relief if the spouse or former spouse concluded an agreement that was not part of the settlement of any pending claim for ancillary relief. If there were negotiations to compromise a claim for ancillary relief, then there was a duty to seek the court's approval, but even an agreement subject to the approval of the court was binding on the parties to the extent that neither could resile from it.

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