Psaltis v Schultz

[1948] HCA 31

High Court of Australia|1948-07-01|Before: Williams JJ, Owen J

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Source facts

Court

High Court of Australia

Decision date

1948-07-01

Before

Williams JJ, Owen J

Source

Original judgment source is linked above.

Judgment (58 paragraphs)

[1]

High Court of Australia Latham C.J. Dixon and Williams JJ. Psaltis v Schultz [1948] HCA 31

[2]

In this action Jessie Boyd Schultz sued George Victor Psaltis for damages for breach of promise of marriage. She was a married woman. Her husband on 31st August 1945 obtained a decree nisi for divorce against her. The promise to marry upon which the plaintiff sued was made in the middle of February 1946. On 29th July the plaintiff's solicitors wrote to the defendant claiming performance of his promise, and on 1st August the defendant's solicitor replied denying any promise to marry. The plaintiff issued the writ in the action on 6th August, alleging a promise to marry within a reasonable time, and relying upon the defendant's repudiation of his promise as a cause of action: Hochster v. De La Tour [4] . In November the plaintiff took proceedings for prematernity expenses against the defendant, and it was then discovered that the decree nisi had not been made absolute, though it might have been made absolute upon the application of either the plaintiff or her husband at any time after the end of February 1946 - Matrimonial Causes Act 1899, s. 23. The decree was made absolute on 12th December 1946 upon the application of the husband. In February 1947 the plaintiff's declaration was amended. The first count of the amended declaration alleged a promise to marry after the decree nisi should be made absolute, and the second count alleged a promise to marry subject to and after the taking by the plaintiff within a reasonable time of any necessary steps to enable the marriage to be lawfully celebrated.

[30]

To be ready and willing to perform a contract a party must not only be disposed to do the act promised but also have the capacity to do it. But the tenor of the promise will show when and how the act is to be performed and it is to that time and mode of performance that the capacity and disposition to fulfil the promise are to be directed. It is enough that he is not presently incapacitated from future performance and is not indisposed to do, when the time comes, what the contract requires. It is here that a distinction arises between the case of a promise given to a third party by a husband or wife whose marriage is not in process of dissolution and one given by a husband or wife for or against whom a decree nisi has already been pronounced. In either case, supposing the parties to contract on the footing that neither has the status of a married person, the mutual promises are to be interpreted as obliging them to marry within a reasonable time determined with reference to the actually free position of the one and the supposedly free position of the other (see Serjeant Mannings' Note (a) 1 to Wild v. Harris [2] ). But in the former case the promisor is incapacitated from the beginning from fulfilling his or her engagement except by the barest chance, namely the immediate death of the other spouse, a chance which ex hypothesi the promisee did not bargain to depend on for performance. In the latter case however the party may be in a position to marry within a reasonable time although the time is fixed as reasonable as for persons free from the beginning to marry. She may be in a position to do so notwithstanding that something remains to be done to obtain her full freedom. That appears to have been the position between the present plaintiff and defendant. They did not contemplate an immediate marriage when the promises were first exchanged. Within a fortnight from that time, or little more, the period expired for making absolute the decree nisi. Either party to the suit for dissolution might then have applied. The defendant did not obtain a finding that the plaintiff was not ready and willing to marry him and on the facts he does not seem to have been entitled to such a finding.

[37]

In the first case his Lordship thought that "there is real substance in the objection that such a promise tends to produce conduct which violates the solemn obligations of married life. If the moral ideal and the legal obligation are expressed in the promise to love and to cherish it may well be doubted whether they can exist unimpaired in the presence of a betrothal to another. But let us consider how far the normal obligations and conditions of marriage continue in ordinary circumstances after decree nisi. They have disappeared: there is no consortium, and the parties are living apart: they owe no duties each to the other to perform any kind of matrimonial obligation: the custody of the children has been provided for by the court: the maintenance of the wife, if petitioner, is similarly provided for: the petitioning spouse has said: "I have done with you." In these circumstances what possible effect can a promise to marry a third person have by way of interference with matrimonial obligations?" [3] . Speaking of the latter case Lord Wright said: "If realities are to be looked at and not mere form, by the Court, as the Court did in regard to judicial separation, the marriage is at an end, and the parties are entitled to provide for their future, at the end of the period fixed for the decree absolute, when by English law they are entitled to marry again. How can the public interest in regard to marriage be prejudiced if the innocent petitioner then desires to enter into an engagement, conditional on the decree absolute, for a fresh marriage?" [4] . So far the reasoning of Fender v. St. John-Mildmay [5] is applicable alike whether the promise of marriage is made either expressly or impliedly conditional upon the pronouncing of a decree absolute or is general importing only marriage upon request within a reasonable time. But a point made in Fender v. St. John-Mildmay [5] is that the promise was to do a perfectly lawful act. "From the point of view of law it ought to be remembered as an essential factor in this discussion that by legislation it has been established that it is not contrary to public policy that married persons should obtain a divorce and not contrary to public policy that immediately after final divorce either of them should marry. To me I must confess it appears lamentable that the law should set its ban upon promises made to do a lawful act by persons who in the interval between the promise and its fulfilment do nothing, and are not induced by the promise to do anything, contrary to the public interests" (per Lord Atkin [1] ).

[55]

The other three submissions can be disposed of together, the crucial question being whether a promise to marry is void ab initio when it is made by a married person whose marriage has reached such a stage of dissolution that divorce proceedings have been taken and a decree nisi for dissolution of marriage has been made. There is no statute which makes such a promise unlawful. It can only be void on the ground that it is contrary to public policy. In Fender v. St. John-Mildmay [1] , Lord Atkin said that this doctrine should only be invoked in clear cases in which the harm to the public is substantially incontestable. Its effect on the validity of promises to marry has been discussed in a number of recent cases. The leading case is, of course, Fender v. St. John-Mildmay [2] . The House of Lords did not express any final opinion whether Spiers v. Hunt [3] and Wilson v. Carnley [4] were rightly decided. Assuming that they were rightly decided (and they are supported by the remarks of Lord Dunedin in delivering the judgment of the Privy Council in Skipp v. Kelly [5] ) the only case in which it has been held that a promise to marry is void on this ground is where the promisor is to the knowledge of the promisee a married person. The contract under discussion in Fender v. St. John-Mildmay [1] was a promise by a married person against whom a decree nisi had been made to marry immediately the decree nisi had been made absolute. But the basis of the decision is that after a decree nisi there is no ground of public policy which prevents a married person making a fresh promise to marry. Lord Atkin said "But let us consider how far the normal obligations and conditions of marriage continue in ordinary circumstances after decree nisi. They have disappeared: there is no consortium, and the parties are living apart: they owe no duties each to the other to perform any kind of matrimonial obligation: the custody of the children has been provided for by the court: the maintenance of the wife, if petitioner, is similarly provided for: the petitioning spouse has said: "I have done with you." In these circumstances what possible effect can a promise to marry a third person have by way of interference with matrimonial obligations? There is no single duty which is being observed by either to the other: and it appears to me merely fanciful to suggest that the public interests are in any respect being impaired. from the point of view of law it ought to be remembered as an essential factor in this discussion that by legislation it has been established that it is not contrary to public policy that married persons should obtain a divorce and not contrary to public policy that immediately after final divorce either of them should marry" [2] . Lord Thankerton said "it is conceded that public policy prevents the enforcement of a promise of marriage by a married person to a third party made prior to the decree nisi, but the appellant maintains that the principle no longer applies after the decree nisi is pronounced" [3] . Lord Wright said "the order nisi in truth determines the status of the parties though its final operation is suspended and it is subject to a contingency" [4] . "But it is obvious that in truth and in substance there is no longer any marriage. There is no longer any matrimonial home, no consortium vitae, no right on either side to conjugal rights" [5] .

[57]

In my opinion there is no objection on the ground of public policy to a married person making an unconditional promise to marry after a decree nisi has been made. It is not a contract in the performance of which there will be generally any tendency to do wrong. The contract itself is lawful and it can only become unlawful if it is entered into for an unlawful purpose, that is to say, if it is a contract to marry before the decree nisi is made absolute. It is to be noted that in Spiers v. Hunt [1] the contract expressly provided that the marriage should take place after the death of the defendant's wife, whereas in Wilson v. Carnley [2] there was no express provision when the marriage should take place. But Vaughan Williams L.J. evidently thought that such a term should be implied because he said, "The question in this case is whether a promise made by a married man during the lifetime of his wife to marry some other woman, presumably after his wife's death, because he could not do so in her lifetime, can be enforced" [3] . It would seem to follow that in the case of a promise to marry by a married person whose divorce has proceeded to the stage of a decree nisi to the knowledge of the promisee, a term should also be implied that the marriage should not take place until the decree nisi has been made absolute. But it is to my mind immaterial that the promisee does not know that the decree has not been made absolute. Each party to the contract must be ready and willing to marry the other. Readiness and willingness include ability to perform the contract. But the contract is a contract to marry in a reasonable time upon request. The plaintiff was never requested by the defendant to perform the contract. If she had been so requested, she would have been entitled to reasonable notice, and she would have been a person who was ready and willing to perform the contract if she had been able to obtain the decree absolute in the meantime. But the contract was repudiated by the defendant before any such request and therefore before the time for performance had arrived, and this entitled the plaintiff to treat the contract as discharged and to sue immediately for damages for breach of contract (Frost v. Knight [4] ).