Contract; formation; intention to be legally bound; agreements between spouses.
Facts: Mr Balfour was employed in Ceylon (now Sri Lanka). He and his wife traveled to England for a visit. When it was time to return to Ceylon, Mrs Balfour was unwell and her doctor advised her to remain in England and rejoin her husband only when she was better. To provide for her while she remained in England, Mr Balfour promised to pay her £30 each month until she rejoined him. However, Mr and Mrs Balfour later separated and divorced. Mrs Balfour brought an action against Mr Balfour to enforce the payment of the promised maintenance.
Issue: Was an agreement of this type, made between married persons, legally enforceable?
Decision: The agreement was not legally enforceable because, in the circumstances, it could not be inferred that it was intended to be legally enforceable.
Reason: Spouses make many domestic agreements, but these agreements do not become legally enforceable "…because the parties did not intend that they should be attended by legal consequences". The courts would be swamped if such agreements could be sued on. Atkin LJ said (at 579):
"[Such agreements] are not sued upon, not because the parties are reluctant to enforce their legal rights when the agreement is broken, but because the parties, in the inception of the agreement, never intended that they should be sued upon."