Brooks v Burns Philp Trustee Co Ltd

In this case the only question to my mind is whether the wife can sue upon the deed by action at law or whether her proper remedy is by application to the Divorce Court. I would not subscribe to a decision which deprived her of all remedy. He held that she could not enforce her husband's covenant; but that, he being alive, she could still apply in the Divorce Court for an award of maintenance; that that was "her proper remedy". Somervell L.J. took substantially the same view. 1. (1942) 42 S.R. (N.S.W.) 246. 2. [1957] P. 120. 3. (1965) 113 C.L.R., at pp. 562, 565. 4. (1903) 4 S.R. (N.S.W.) 51. 5. [1952] 1 K.B. 249. 6. [1952] 1 K.B., at p. 260.

I go next to the other feature in which the present case differs from Bennett v. Bennett [1] . It is the effect of the recital in the decree nisi for divorce that "His Honour pronounced that the petitioner had sufficiently proved the contents of the said petition and having approved the deed of settlement ordered and decreed ". It is agreed that the expression "the deed of settlement" in this document means the deed now in question.

It was said for the respondents that the deed would have been put before the Divorce Court merely to rebut any suspicion of collusion which would prevent the Court dissolving the marriage. The Court's approval, it was submitted, meant no more than that the deed was found not to stand in the way of a divorce, see Galbraith v. Galbraith [3] . But I think we cannot go behind the formal record of the Supreme Court. The statement that the judge approved the deed of settlement seems to mean more than that he was aware of the deed the parties had executed and did not treat it as indicative of collusion. It must, I think, mean that, having given it attention, he pronounced it as in some sense proper to be carried into effect. But the question is not altogether easy and demands close consideration.

An agreement which evidences collusion, and is thus a bar to divorce, will be of no effect. It fails of effect because the condition for its operation, divorce, is not fulfilled, for the very reason that its existence has prevented this. It seems to me that it is in this sense that the remarks of Denning J., as he then was, in Emanuel v. Emanuel [4] , are to be understood. His Lordship there dealt with the need for the Court to be satisfied that its jurisdiction was not being collusively invoked; and he referred to the difficulty of drawing the line between an improper and a not improper agreement and said [1] :

It is for these reasons that the Court requires that all agreements for permanent maintenance, custody of children, damages or costs shall be disclosed to it at the hearing of the petition, no such agreements being valid without the sanction of the Court, except those made after decree absolute. His Lordship repeated this in Combe v. Combe [2] , saying: I have always understood that no agreement for maintenance, which is made in the course of divorce proceedings prior to decree absolute, is valid unless it is sanctioned by the Court. I know that such agreements are often made, but their only valid purpose is to serve as a basis for a consent application to the Court. The reason why such agreements are invalid, unless approved, is because they are so apt to be collusive. In Whittle v. Whittle [3] , Walsh J. said [4] : I think it must be acknowledged that the authorities on the subject create considerable difficulty in arriving at a positive view as to the effect, prior to the enactment of the Matrimonial Causes Act 1959 of a sanction or an approval by the Court of an agreement for maintenance which by its terms was intended to be a permanent provision by which the wife would be bound. I agree, and for that reason I refrain from a detailed examination of the cases. 1. [1946] P. 115. 2. [1946] P., at p. 117. 3. [1951] 2. K.B. 215, at p. 222. 4. (1965) 66 S.R. (N.S.W.) 141. 5. (1965) 66 S.R. (N.S.W.), at p. 145.

It is I think important to keep distinct, and not to confuse, two different situations in which an agreement for maintenance, the validity of which might otherwise be challenged, is saved by the sanction or approval of the Divorce Court.

The first is that agreements which might be denounced as part of a collusive arrangement for a divorce are valid if disclosed to the Court and "sanctioned", which I take it means here countenanced and held not to stand in the way of a divorce: see e.g. Carmichael v. Carmichael [5] ; Clarke v. Clarke [6] ; Teale v. Burt (formerly Teale) and Burt [7] . This position can, of course, only arise when the agreement which, if it were not sanctioned or approved, might be impeached was made before decree absolute and in contemplation of divorce. The invalidity, which the Court's approval prevents, does not, in such a case, arise because the agreement was to oust the Court's jurisdiction or to renounce statutory rights - quite the reverse: it arises because the agreement is made when the jurisdiction is to be improperly, because collusively, invoked.

1. (1925) 42 T.L.R. 133. 2. (1925) 42 T.L.R. 132. 3. [1951] P. 438, at p. 442.

The other situation in which the Court's approval has been held to prevent an agreement being invalid arises quite differently. In it the agreement in question may have been made before divorce proceedings began, while they were in progress, or after decree absolute. It is not said to be invalid because collusive, but because it embodies a promise by the wife to renounce her statutory rights which is invalid by reason of the principle in Hyman v. Hyman [1] . The approval of the Court is not then required to dispel the reproach of collusion. It operates differently, and according to a doctrine which seems to have been first enunciated in Bennett v. Bennett [2] . The two situations can however overlap. As they can be met in the same way, namely by the Divorce Court's approval of the agreement between the parties, any formal unqualified record of the Court's approval must, I think, suffice to meet the requirement in either or both situations, whatever was the purpose for which it was sought. If the Court has in fact approved of an agreement, for whatever reason it did so, it is in my opinion impossible to say that the agreement was ineffectual as against the public interest.

It is noteworthy that in the article "Divorce" in Halsbury's Laws of England, 3rd ed., vol. 12, p. 439, the law relevant to the second situation is stated in the words which Lord Denning used in Bennett v. Bennett [2] . To his judgment I therefore return. After the passages I have already quoted, in which his Lordship had said that both the wife's and the husband's covenants were invalid, he said:

If the parties do not oust the jurisdiction of the Divorce Court, but preserve it by making their agreement subject to the sanction of the Court, then, once it is sanctioned, it is valid. And later, Its sanction should, I think, be obtained in this way: if the parties agree on a figure for maintenance, the Court should be asked to make an order for that figure; if they agree on a secured provision, the Court should be asked to approve the deed which contains the provision. The part of the second passage which is relevant here is that in relation to a secured provision: "The Court should be asked to approve the deed which contains the provision." The deed in this case answers the description of a secured provision. It was secured by the husband's covenant under seal, given for himself and his executors: see Redgrave v. Redgrave [1] . A bond is commonly and properly called a security. And that this was the sense in which his Lordship used the expression is apparent because he said [2] : The proper way of doing it would be to ask the judge to approve the deed as a secured provision for the wife on the ground that it secures to her an assured sum of money by covenant under seal. 1. [1952] 1 K.B. 249. 2. (1951) 82 C.L.R. 521. 3. [1952] 1 K.B., at p. 263.

According to the terms of the decree nisi in the case before us, the deed was approved by the learned and very experienced judge in divorce when he made the decree. It is true that he did not then, in 1950, have the benefit of knowing what was to be said by Lord Denning two years later. Neither did he know that Jenkins L.J. was to say in 1956, in Russell v. Russell [3] :

The principle in Hyman v. Hyman [4] , be it remembered, is satisfied by any bargain which is brought before the Court for approval and approved by the Court. Nor did he know that Abbott J. would say in the Supreme Court of South Australia in Burney v. Burney [5] , Hyman v. Hyman [4] appears now to apply only to agreements made between the spouses and containing covenants by the wife not to apply for future maintenance, when those agreements have not been submitted to the Matrimonial Court for approval. But he did approve the deed and the only question is what was the effect of his doing so. I do not think it is to be discounted simply because he did not have the guidance of later authorities. Nevertheless, it was said for the respondents that his Honour's approval was of no consequence. Several reasons were advanced for this. 1. [1956] P., at p. 295. 2. [1929] A.C. 601. 3. [1956] S.A.S.R. 171, at p. 176. 4. [1929] A.C. 601.

First it was said that Lord Denning's proposition, that the sanction of the Divorce Court would confer validity on an agreement, applied only when, using his Lordship's words, the parties had preserved the jurisdiction of the Court "by making their agreement subject to the sanction of the Court". In the case of a deed it was said this meant a delivery in escrow. That an instrument was delivered as an escrow can be inferred from circumstances: Bowker v. Burdekin [6] and other cases cited in Norton on Deeds, 2nd ed., p. 20; also In re Carile; Dakin v. Trustees Executors and Agency Co. Ltd. [1] . But I do not think that it can be inferred from the evidence in the present case that the deed was executed as an escrow - that is that its operation, either as a whole or as to any particular term, was from the outset intended by the parties to be conditional on the Divorce Court's approval. But it can, I think, be inferred that when the parties executed the deed, each in the presence of his or her solicitor, they, or at all events their advisers, understood that it was to be next day placed before the Divorce Court. The lawyers must have been conscious of the need to disclose it to rebut any suggestion of collusion. It was of special importance in this case that this be done, for a petition for judicial separation had been, by leave, amended to be a petition for dissolution of the marriage; and the cases of Doutrebande v. Doutrebande [2] , and Cohen v. Cohen [3] , stood as warnings. I have no doubt that the intention throughout was to place the deed before the Court; and I have no doubt that if the Court's approval of the deed was necessary to make it fully binding, and the parties knew of this, they would have wanted to obtain this approval. But I am unable to think that it was intended by them that the deed was to have no operation at all unless the Court approved it. It seems to me that they intended that it should operate according to its terms so far as the law allowed and according to events.

1. (1843) 11 M. & W. 128, at p. 147 [152 E.R. 744, at p. 751]. 2. [1920] V.L.R. 427. 3. (1929) 29 S.R. (N.S.W.) 456. 4. (1942) 43 S.R. (N.S.W.) 37.

I do not read what was said in Bennett v. Bennett [4] as if the very words of the judgments were the provisions of a statute. If an agreement, which would have been unenforceable if not approved by the Court, was in fact put before the Court by the parties, and was approved by the Court, I do not think it should be necessary to ask whether or not at an earlier stage it answered the description of an escrow. It seems to me rather that it would be more accurate to say that it was, from the outset, like many other transactions and acts in the law which in their inception are inchoate and only become effective on receiving the assent or approval of a third party or of some public authority. I would on the present aspect agree with the views which were forcefully expressed in the learned judgments in the Supreme Court of New South Wales in Shaw v. Shaw [5] , if only I were satisfied of all parts of their underlying assumption. But I am not. Of course I do not question the decision in that case. This Court held that it was demonstrably right: Shaw v. Shaw [1] . In that decision I agreed. But it seems to me to be a mistake to regard the approval of the Divorce Court of an agreement which, without that approval, would be unenforceable, as a turning of the void into the valid by a magical stroke. If Bennett v. Bennett [2] is to be accepted, is not the rule rather that unless and until it were sanctioned or approved by the Court the agreement was not enforceable by law? Approval was not necessary to change its character but rather to complete the transactions.

1. [1952] 1 K.B. 249. 2. (1965) 66 S.R. (N.S.W.) 30. 3. (1965) 113 C.L.R. 545. 4. [1952] 1 K.B. 249.

It is, of course, well established that the jurisdiction of the Court to award maintenance to a wife cannot be ousted by any private agreement between the parties: see Bennett v. Bennett [2] following Hyman v. Hyman [4] . Such an agreement is unenforceable against the wife as being contrary to public policy. But it is otherwise when the agreement is brought before the Court and an order of the Court is made giving effect to its terms. The making of an order would of course put the matter beyond doubt; but I do not think that the cases which deal with the need for the Court's approval or sanction require that this be made manifest by an order in the terms of the agreement. Moreover, again if the reasoning in Bennett v. Bennett [2] be accepted in its entirety, the Court can I think approve of an agreement as an instrument operative inter partes, although it might not be able itself to make an order in the same terms. That position arises when the agreement provides, as in this case, for payments to the wife to continue beyond the joint lives of the parties. I agree that cl. 3 of the deed was of no effect for it contemplated the Divorce Court making an order which it could not make. But an agreement to endure for the life of the wife and to bind the husband's executors is not inherently invalid: cf. Kirk v. Eustace [5] . And, notwithstanding criticisms in later cases, I am not persuaded that the decision of Roper J. in Perpetual Trustee Co. (Ltd.) v. Alldritt [6] , was mistaken in so far as his Honour held that the agreement between the parties, intended to endure for the lifetime of the wife, was enforceable against the husband's estate. That it could not be translated into an order of the Court does not mean that it was invalid as an agreement or that it could not have had the approval of the Court: cf. Tyson v. Tyson [7] . 1. [1962] P. 101, at pp. 118, 119. 2. [1952] 1 K.B. 249. 3. [1929] A.C. 601. 4. [1952] 1 K.B. 249. 5. [1937] A.C. 491. 6. (1942) 42 S.R. (N.S.W.) 246. 7. (1903) 4 S.R. (N.S.W.) 51.

There is a further question on this part of the case. It is said that before the amendment of s. 40 of the Matrimonial Causes Act, 1899-1957 of New South Wales by Act No. 22 of 1958, the Supreme Court in its matrimonial jurisdiction had no power to approve of an agreement such as that embodied in the deed. By s. 39 (1) of the Matrimonial Causes Act, 1899, as it stood at the time of the decree nisi, the Court could

on any decree for dissolution of marriage order the husband to secure to the wife for any term not exceeding her life and to the satisfaction of the Court such gross or annual sum of money as it deems reasonable. And by s. 39 (3) it was enabled to "settle and approve of a proper deed or instrument to be executed by all necessary parties". Such a deed was "final, irrevocable and unalterable": Saywell v. Saywell [1] . Instead of ordering the husband to secure to the wife a gross or annual sum the Court might order, pursuant to s. 40, that he pay to the wife during their joint lives a monthly or weekly sum for her maintenance. Such an order could be varied, modified or temporarily suspended if he became unable to continue such payments. The amendments of s. 40 made in 1958 enabled the Court to order that "a gross sum or a weekly, fortnightly, monthly or other periodic sum be paid or secured"; and that any necessary deed or instrument be executed: and power was then expressly given to "settle and approve any deed or instrument so ordered to be executed": and also, among other things, to "sanction an agreement for the acceptance of a gross sum or periodic sums in lieu of rights given under this Part". 1. (1942) 65 C.L.R. 557, at pp. 564, 569.

Two questions emerge from this. They are important, not only for this case, but I imagine for other parties in other cases too. The first is whether the deed in this case was one which could have been approved under s. 39. Street J. held that it was not. I am of the same opinion, because it was not executed as a result of an order of the Court made after the inquiry which s. 39 (2) directed. I should, however, add that his Honour's other reason for putting it outside s. 39 - namely that it did not secure a "gross or annual sum" - is perhaps questionable. Surprising though it may seem, an amount calculated as a weekly amount and payable monthly can, it seems, be called an "annual sum": In re Janes' Settlement; Wasmuth v. Janes [2] . Moreover, apparently all annual, monthly and weekly payments are alike in being by the law of New South Wales regarded as accruing from day to day and apportionable accordingly: Conveyancing Act, 1920 N.S.W., s. 144. The second of the two questions which, as I have said, emerge at this point is whether the absence before 1958 of any express authority for the Court to sanction agreements, the Court's formal statement in this case that it had approved the deed was altogether nugatory. The decision of the Supreme Court of New South Wales in Whittle v. Whittle [1] , supported by the dicta in Shaw v. Shaw [2] , is certainly weighty; and it is with some hesitation that I have come to a different conclusion. I see no reason to disagree with the actual decision in Whittle v. Whittle [1] upon the facts of that case. Whatever effect the approval of the deed there had in the proceedings for judicial separation, it must I think have operated only while the parties remained married, though separated. I do not see how the approval of it in those proceedings could destroy the statutory rights which public policy assured to the wife in altogether different proceedings which occurred ten years later. But the case is important because the Full Court did not say that the approval was ineffective or spent. It held that it was not competent in 1955 for the Court (either by the judge or the Registrar) to have sanctioned or approved the agreement, there being no statutory authority for doing so. I am not satisfied that that is a correct view. The law says to a wife who is a party to divorce proceedings: You have rights which you cannot relinquish by agreement unless you get the approval of the Court in which you could assert them. It seems to me that whenever a compromise or settlement of a claim is valid in law, if it has the sanction of approval of the court having jurisdiction in the matter of such a claim, then that Court has inherent power to sanction or approve the compromise or settlement. Express statutory authority is not I think needed to enable it to do so.

1. [1918] 2 Ch. 54. 2. (1964) 82 W.N. (Pt 1) (N.S.W.) 31. 3. (1965) 66 S.R. (N.S.W.) 30. 4. (1964) 82 W.N. (Pt 1) (N.S.W.) 31.

Accepting then for present purposes what I take to be the doctrine of Bennett v. Bennett [3] and taking the expressed approval of the deed in this case as satisfying the requirements of that doctrine, what then is the final result? I think that it is that if the appellant's husband had repudiated his undertaking, or failed to make the promised payments as they fell due, the appellant could have sued him on his covenant. She could not have been told, as Mrs. Bennett was, that her proper remedy was by an application in the Divorce Court.

Whether the Court's approval made the provisions of the deed immutable is another question. The Court's approval of the deed, being before the Matrimonial Causes Act 1959 Cth came into operation, cannot be related to its provisions. The agreement between the parties was thus not sanctioned pursuant to s. 87 (1) (k) of that Act. Therefore, in this case, no question arises such as was considered in Shaw v. Shaw [1] , and Sherwood v. Sherwood [2] . Whatever was the position while both parties were alive, the Divorce Court has no longer any jurisdiction over them. Yet the deed stands and its covenants are I consider enforceable by the appellant by action at law against the respondents as her late husband's executors.

1. (1965) 113 C.L.R. 545, at p. 549. 2. (1966) 85 W.N. (Pt 1) (N.S.W.) 483.

As what I have written is discursive, opinionated, perhaps turgid, certainly lengthy, I summarize my conclusions as follows:

(1) The appellant was not precluded by her covenant in cl. 2 of the deed from applying to the Supreme Court in its matrimonial causes jurisdiction for an order for maintenance, while and for so long as she was by law entitled to make such an application.

(2) It was not unlawful for the appellant to perform her covenant. It was merely unenforceable by law.

(3) An unenforceable promise is not a valuable consideration which will support an executory contract not under seal.

(4) A covenant by deed which is not enforceable, but which is not to do an act that is unlawful, does not render related or dependent covenants unenforceable. In such a case the condition resulting from dependency of mutual covenants which is ordinarily implied is that each covenantor should perform, or be ready to perform, his covenant, not that it must be enforceable against him at law.

(5) If and so far as anything said in the judgments in Bennett v. Bennett [3] is to be read as contradicting the above propositions, it should not be followed.

(6) Bennett v. Bennett [3] is in any event distinguishable from this case because: (a) in the events which have happened it is not now possible for the appellant to seek an order for maintenance; and (b) this deed was approved by the Divorce Court. Either (a) or (b) above suffices to make the decision in Bennett v. Bennett [3] not applicable in this case.

(7) The appellant is entitled to be paid until her death the sum of twenty-five dollars per week from the estate of her husband pursuant to his covenant, the obligations of which bind the respondents in their capacity as executors. I would answer the question in the originating summons accordingly, and allow the appeal.

1. [1952] 1 K.B. 249. 2. [1952] 1 K.B. 249. 3. [1952] 1 K.B. 249. Owen J.

The question which arises in this appeal is whether the respondents, the executors of the will of one J. H. J. Brooks deceased, are liable to make certain periodic payments to the appellant under the terms of a deed entered into on 11th December 1950 between the appellant and the deceased who was then the appellant's husband. Street J., before whom the question arose, decided it in favour of the respondents and from his decision this appeal is brought.

It is common ground that, as the deed recites, it was executed at a time when proceedings for dissolution of marriage had been instituted by the appellant in the Supreme Court of New South Wales in its matrimonial causes jurisdiction and she had indicated to the deceased her intention, in the event of a decree absolute being made, to apply to the Court for an order for permanent alimony. By cl. 1 (b) of the deed the deceased covenanted that "as from the granting of the Decree Absolute" he would "during the life of the wife pay to her the sum of Thirteen pounds seven shillings (£13.7.0) per week; such payments to be paid in advance on the last day of each month for the succeeding month " subject to certain provisos which are not material for present purposes. Clause 2 of the deed was as follows:

2. The wife covenants with the husband that she will accept the terms provided by this Deed in full settlement of all claims against the husband for alimony and maintenance of any description.

And by cl. 3 the deceased covenanted that, if required to do so by the appellant, he would consent to an order being made by the Court for the payment of the weekly sums covenanted to be paid by him "in order to secure" to the appellant those weekly payments. The effect of cll. 2 and 3 was that, while the appellant might seek an order of the Court to secure the payments agreed to be made, she had covenanted to accept those payments in full settlement of all her claims for alimony or maintenance.

On 12th December 1950 the day following that on which the deed was executed, the appellant obtained a decree nisi for dissolution of marriage and that decree, after reciting that the Court had "approved the deed of settlement" went on to order that the marriage be dissolved within six months from the date of the decree. The "deed of settlement" to which the decree referred is admittedly the deed of 11th December 1950. The decree nisi was made absolute on 12th July 1951, and neither then nor at any other time was the Court asked by the appellant to make an order for alimony or maintenance or "to secure" to her the "weekly payments" for which the deed provided.

At all relevant times the New South Wales Matrimonial Causes Act of 1889 was in force. It empowered the Court, by s. 39, on a decree for dissolution of marriage, to order the husband to secure to the wife for any term not exceeding her life such gross or annual sum of money as it deemed reasonable. By s. 40 (1) the Court, instead of ordering the husband to secure to the wife a gross or annual sum, might order him to pay to the wife during their joint lives such monthly or weekly sums for her maintenance or support as the Court should think reasonable and, by s. 40 (2), it might discharge or modify its order or temporarily suspend it if the husband should become unable to make the payments ordered. It is to be noticed that the deed here in question provided that the payments covenanted to be made by the husband were to be made not during their joint lives but during the life of the appellant, and further that the amounts covenanted to be paid were neither a "gross" nor an "annual sum". It follows that the Court would have had no jurisdiction to make an order in terms of cl. 1 (b) of the deed and in fact it did not purport to do so unless, from the recital in the decree nisi that the Court had approved of "the deed of settlement", it can be said that the Court had, by implication, made an order which it had no power to make - a proposition which cannot be maintained. No doubt the deed was produced to the Court when the application for a decree nisi was heard, not in support of or in answer to an application by the appellant for an order for alimony or maintenance or to secure the payments covenanted to be made by the deceased, for no such application was made, but to meet any suggestion that the divorce proceedings were collusive.

Street J. considered that cl. 2 of the deed was void as being a provision which purported to oust the jurisdiction of the Court and that the deceased's covenant in cl. 1 (b) to pay to the appellant the weekly sum of £13 7s. and the appellant's covenant to accept those payments in full settlement of all claims for alimony and maintenance were so dependent, the one upon the other, that they were incapable of severance so that if the appellant's covenant was void, the deceased's covenant failed with it.

I am of opinion that his Honour's decision on both points was correct. There is no doubt that an agreement which purports to oust the jurisdiction of the courts is void as being against public policy and, applying that general principle, a promise by a wife that, in the event of the dissolution of their marriage, she will accept an amount agreed upon between herself and her husband in full settlement of all claims for alimony or maintenance, is void and unenforceable. Clause 2 contains such a promise and, while it is true that cl. 3 contemplated that the appellant might make an application to the Court for an order to secure the payments for which cl. 1 (b) provided, the fact remains that cl. 2 purported to preclude the appellant from seeking any order for payments other than those set out in cl. 1 (b). If therefore cl. 2 is void and it appears - as I think it does - that on the true construction of the deed the covenant by the husband in cl. 1 (b) is dependent upon the covenant by the wife in cl. 2, the two clauses are incapable of severance and each is void.

We were referred to a number of cases which bear upon these questions. In Hyman v. Hyman [1] , the question - and the only question - that arose before the House of Lords was whether a wife who had covenanted, in a deed of separation, not to molest or disturb the husband or by any means compel him to cohabit with her or enforce any restitution of conjugal rights or compel him to allow her any alimony or maintenance over and above the amount which he had covenanted to pay her was thereby precluded from obtaining an order for alimony in proceedings which she had later taken for dissolution of the marriage. It was held that the wife's covenant did not debar the Court from making an order for alimony in her favour although, as was pointed out by Lord Hailsham [2] :

this by no means implies that, when the application is made, the existence of the deed or its terms are not most relevant factors for consideration by the Court in reaching a decision. With this, with respect, I agree. When the court is considering an application for alimony the fact that the parties have reached agreement on the amount to be paid will afford evidence - and in most cases weighty evidence - that the agreed figure is one which makes adequate provision for the wife's maintenance and support. 1. [1929] A.C. 601. 2. [1929] A.C., at p. 609.

My brother Menzies has pointed out, however, that passages are to be found in the speeches of their Lordships in Hyman's Case [1] which appear to recognize that, notwithstanding that the wife's covenant in that case was invalid and did not, therefore, debar her from obtaining an order for alimony, the husband's covenant to pay could be enforced. As to this I would make these observations. In the first place, that question did not arise for decision. Further, the deed was a deed of separation. At the time it was executed the husband was living in adultery with another woman and the law did not, at that time, enable a wife to obtain a divorce solely on the ground of her husband's adultery. In these circumstances the view was open - as was pointed out in a later case of Bennett v. Bennett [2] and, on appeal [3] - that the substantial consideration for the husband's promise was the wife's promise that she would take no steps to compel him to cohabit with her.

1. [1929] A.C. 601. 2. [1951] 2 K.B. 572. 3. [1952] 1 K.B. 249.

In Bennett v. Bennett [4] a wife had petitioned for dissolution of marriage. Before the making of the decree her husband had covenanted to make financial provision for her and a child of the marriage and she had covenanted to accept that provision in full satisfaction of all her claims and those of the child for alimony or maintenance. A decree for dissolution of the marriage was made and for a period the husband made the payments specified in the deed. Later the payments fell into arrears and the wife brought an action in which she sought to recover the amounts unpaid. Devlin J., as he then was, who tried the action dismissed it on the ground that the wife's covenant was void as being contrary to public policy and that the husband's covenant, being made in consideration of the wife's covenant, fell with it and could not be enforced. In the course of his judgment his Lordship, in dealing with the question of severability, referred to Hyman v. Hyman [1] and said of it [5] , that

it may well be that the objectionable clause in the deed would have been severable from the husband's promise; this may explain, if any explanation be needed other than the fact that the point was not under consideration, why some of their Lordships, particularly Lord Atkin, referred to the husband's promise in that case as being still alive. In the Court of Appeal Somervell L.J. made the same points. He pointed out [6] , and again [7] , that the question whether the wife's covenant "voided the whole deed" had not arisen for consideration and added that "the doctrine of severability being applicable might well have prevented the whole agreement from being regarded as void. The main subject of the agreement was the separation. The possibility of divorce was remote and seemed to depend on a change in the law. It might well, in these circumstances, be held to be subsidiary and "severable" ". Denning L.J. [1] , drew attention to the fact that the deed was a deed of separation and pointed out that in such case the substantial consideration for the promise by the husband might well be the agreement to live apart and that in these circumstances the husband's promise would be severable. That, his Lordship thought, was "implicit" in the speeches in Hyman's Case [2] . He went on to say [3] , that in the case of an agreement for the payment of alimony upon the dissolution of a marriage different considerations arose since if a promise by the wife to accept agreed payments in settlement of any claims she might have for alimony was void, that promise might well form the whole or substantially the whole of the consideration for the husband's promise to make the agreed payments and, in such case, "if her promise does not bind her, then his should not bind him". He went on [3] : If the parties do not oust the jurisdiction of the Divorce Court, but preserve it by making their agreement subject to the sanction of the Court, then, once it is sanctioned, it is valid. The Court, however, cannot and will not give its sanction before decree nisi. It has itself no jurisdiction before decree nisi to deal with permanent maintenance. Its jurisdiction only arises "on" the decree. Its sanction should, I think, be obtained in this way: if the parties agree on a figure for maintenance, the Court should be asked to make an order for that figure; if they agree on a secured provision, the Court should be asked to approve the deed which contains the provision. Counsel for the appellant placed some reliance upon this passage in support of a submission made by him that, assuming cll. 1 (b) and 2 to have been invalid when the deed was executed, the recital in the decree nisi that the deed had been approved had in some way had the effect of validating covenants which up to that time had been invalid. But what his Lordship said in the passage last quoted is not, in my opinion, to be read as meaning that the mere approval by the Court of an agreement for alimony made between husband and wife validates that which the law regards as invalid. I think that what his Lordship meant was that if an agreement for alimony was made by the parties subject to the approval of the Court, the Court, assuming that it had jurisdiction to do so, could, if it thought fit, make an order in terms of the agreement in which case it would be the order of the Court and not the terms of the agreement that would be binding and enforceable. This was the view of his Lordship's remarks which commended itself to the Full Supreme Court of New South Wales in Shaw v. Shaw [1] and Whittle v. Whittle [2] in which questions arose as to the effect of the Court "sanctioning" or "approving" an agreement for alimony or maintenance made between husband and wife which was void as purporting to oust the jurisdiction of the Court and I agree with their Honours. 1. [1951] 2 K.B. 572; [1952] 1 K.B. 249. 2. [1929] A.C. 601. 3. [1951] 2 K.B., at pp. 575, 576. 4. [1952] 1 K.B., at p. 251. 5. [1952] 1 K.B., at p. 259. 6. [1952] 1 K.B., at p. 261. 7. [1929] A.C. 601. 8. [1952] 1 K.B., at pp. 262, 263. 9. [1952] 1 K.B., at pp. 262, 263. 10. (1965) 66 S.R. (N.S.W.) 30. 11. (1965) 66 S.R. (N.S.W.) 141.

For the reasons I have stated I am of opinion that cl. 2 of the deed in the present case was void; that cl. 1 (b) shared the same fate because dependent upon the operation of cl. 2; and that if cl. 1 (b) could not have been enforced against the deceased, it cannot now be enforced against his executors. I am also of opinion that the "approval" of the Court recited in the decree nisi did not operate to validate those clauses. The decree did not purport to substitute an order of the court for the deceased's covenant in cl. 1 (b).

One further matter remains for consideration. Counsel for the appellant put forward an argument that the respondent executors are in some way estopped from setting up the invalidity of cll. 1 (b) and 2. If I understood the submission correctly, it was that they are estopped from contending that the "approval" of the Court recited in the decree nisi did not validate the relevant covenants in the deed. Alternatively it was said that, by making the agreed payments to the appellant during his lifetime the deceased was estopped - and his executors are now estopped - from contending that those covenants are invalid.

Neither of these submissions can be upheld. It is impossible, in my opinion, to find in the present case the elements necessary to create an estoppel. And, apart from any other consideration, I do not think that the doctrine of estoppel can be invoked so as to prevent a court from considering whether a contractual provision is invalid as being contrary to public policy.