Soulsbury v Soulsbury
Court of Appeal
Citations:  EWCA Civ 969;  Fam 1;  2 WLR 834;  1 FLR 90;  3 FCR 811;  WTLR 1841;  Fam Law 13;  CLY 1427.
The parties were a formerly married couple who divorced in 1986. As part of the divorce, the court ordered the husband to pay the claimant wife £12,000 a year. In 1993, the parties agreed that the claimant would not pursue any further annual payments, and in exchange for this she would receive £100,000 after the defendant’s death. The husband stopped making periodical payments and altered his will to bequeath the claimant £100,000.
In 2002, the husband remarried. This had the effect of automatically revoking his prior will. He died the same day. The claimant sued his personal representative (the defendant) for the £100,000. She argued that she and her former husband had entered into a contract for the bequest of the £100,000, which the husband had breached by dying without an effective will making that gift.
- Was the 1993 agreement between the claimant and her former husband void because it ousted the jurisdiction of the court?
- Did the parties create a binding, enforceable contract when they entered into the 1993 agreement?
The Court of Appeal held in favour of the claimant. Properly interpreted, the 1993 agreement did not oust the jurisdiction of the court. The claimant had not promised to give up her right to apply the court, she merely agreed to forfeit a £100,000 bequest if she did apply to the court. Even though the parties had a domestic relationship, it was clear that they intended the arrangement to alter their legal relations. The agreement was therefore an enforceable contract, and the defendant was in breach.
This Case is Authority For…
An agreement to explicitly or implicitly oust the jurisdiction of the court is void. However, a contract which would not place a party in breach if they did apply to the court is not treated as ousting the court’s jurisdiction.
A contract for the mutual variation of an ancillary relief order is valid and capable of specific performance. This is true even if it is not confirmed by a further court order, as long as it does not fall within the category of contracts which are void for public policy reasons.
Longmore LJ described the contract between the parties as a ‘classic unilateral contract’. The husband had made a unilateral offer to bequeath £100,000 to the claimant if she did certain acts: namely, not enforcing her right to annual payments. Once she began performing, the husband was no longer able to revoke his offer. When he died without her ever enforcing her right to seek the payments, the offer was finally fully accepted.