Combe v Combe
[1951] 2 K.B. 215
Court of Appeal
Facts:
Husband promised wife a yearly post-tax allowance of £100 during divorce agreements. W did not to go through the court to get maintenance, but this was not part of their agreement. H did not pay the allowance and W brought a claim against him after 6 years.
Legal Facts / Procedural History:
High Court (Kings Bench Division) – no consideration, but there was an enforceable promise.
Legal Issues:
Whether there was a valid contract between the husband and his wife due to consideration.
Whether estoppel could be used to bring action (used as a sword, rather than a shield).
Appellant (Husband) Arguments:
W could not relinquish her right to seek remedy through the court, so her mere abstinence is not valid consideration as it is worthless.
Respondent (Wife) Arguments:
There was a valid contract as W’s action of refraining from seeking maintenance through the courts was consideration.
Judgement (Asquith LJ, Denning LJ and Birkett LJ):
Appeal allowed.
Denning LJ:
Reiterates High Trees case – promissory estoppel should not be allowed to be used as a sword / cause of action. Promissory estoppel can only be used when a party has relied on the promise to their detriment.
W can only enforce promise if there was consideration. The wife made no promise, either expressly or implied, and the husband didn’t request that she do so.
Only agreements for maintenance made through the Divorce Court are valid.
No one can bind themselves to revoke a right, so abstinence of said right is not consideration as it is worthless.
Would be morally wrong to make husband pay wife when the wife earns more.
Birkett LJ:
Agrees with the lack of consideration. The wife still had a right to apply to the Divorce Court as there is no valid contract (through it is unlikely that she would win).
Asquith LJ:
If the husband didn’t request that the wife didn’t apply to the court, then her action of not doing so is not in relation to a contract.
Comments