Proviso for reconciliation in settlor or by his representatives, though in fact made on an immoral consideration (c). Where parties who have been living together in illicit cohabitation separate, and the man covenants to pay an quasi sepa- annuity to the woman, with a proviso that the annuity ration deed is void. Separation deeds in Hunt v. shall cease or the deed shall be void if the parties live together again, there the covenant is valid as a simple voluntary covenant to pay an annuity, but the proviso is wholly void. It makes no difference, of course, if the parties, being within the prohibited degrees of affinity, have gone through the form of marriage, and the deed is in the ordinary form of a separation deed between husband and wife (d). When the parties are really married such a proviso is usual but superfluous, for the deed is in any case avoided by the parties afterwards living together (e). This brings us to the second branch of this topic, namely the validity of separation deeds and agreements for separation. The history of the subject will be found very clearly set forth in Lord Westbury's judgment in Hunt v. Hunt (ƒ). From the ecclesiastical point of view marriage was a sacrament creating an indissoluble relation. The duties attaching to that relation were "of the highest possible religious obligation" and paramount to the will of the parties. In ecclesiastical Courts an agreement or provision for a voluntary separation present or future was simply an agreement to commit a continuing breach of duties with which no secular authority could meddle, and therefore was illegal and void. For a long while all causes touching marriage even collaterally were claimed as within the exclusive jurisdiction of those courts. The sweeping character and the gradual decay of such claims have already been illustrated by cases we have had occasion to cite from the Year Books (e) Ayerst v. Jenkins, 16 Eq. 275, (d) Ex parte Naden, 9 Ch. 670. (f) 4 D. F. J. 221. The case was taken to the House of Lords, but the proceedings came to an end without any decision by the death of the husband: see per Lord Selborne, 8 App. Ca. at p. 421. in other places. In later times the ecclesiastical view of marriage was still upheld, so far as the remaining ecclesiastical jurisdiction could uphold it (g), and continued to have much influence on the opinions of civil Courts; the amount of that influence is indeed somewhat understated in Lord Westbury's exposition. But the common law, when once its jurisdiction in such matters was settled, never adopted the ecclesiastical theory to the full extent. A contract providing for and fixing the terms of an immediate separation is treated like any other legal contract. It must satisfy the ordinary condition of being made between competent parties, and the wife cannot contract with her husband: but even this difficulty is in certain exceptional cases not insuperable (p. 83 above), and it is generally circumvented by the contract being made between the husband and a trustee for the wife. Being good and enforceable at law, the contract is also good and enforceable in equity, nor is there any reason for refusing to enforce it by any of the peculiar remedies of equity. In Hunt v. Hunt the husband was restrained from suing in the Divorce Court for restitution of conjugal rights in violation of his covenant in a separation deed (h), on the authority of the decision of the House of Lords (i), which had already Wilson v. established that the Court may order specific performance of an agreement to execute a separation deed containing such a covenant. The case may be taken as having put the law on a consistent and intelligible footing, though not without overruling a great number of pretty strong dicta of various judges in the Court of Chancery and even in the House of Lords (k); and it has been followed both (g) See 4 D. F. J. 235-8. (h) This covenant could not then be pleaded in the Divorce Court, which held itself bound by the former ecclesiastical practice to take no notice of separation deeds. (i) Wilson v. Wilson, 1 H. L. C. 538. (k) In St. John v. St. John, 11 Ves. 535, &c., Westmeath v. West meath, 1 Jac. 142 (Lord Eldon); Wilson. Consideration for agree separation deeds. in the Chancery and in the Probate Divisions (7). But an agreement by the wife not to oppose proceedings for a divorce pending at the suit of the husband is void, being not only in derogation of the marriage contract, but a collusive agreement to evade the due administration of justice (m). We have seen that when it is sought to obtain the specific performance of a contract the question of conments for sideration is always material, even if the instrument is under seal. Generally it is part of the arrangement in these cases that the trustees shall indemnify the husband against the wife's debts, and this is an ample consideration for a promise on the husband's part to make provision for the wife, and of course also for his undertaking to let her live apart from him, enjoy her property separately, &c. (n). But this particular consideration is by no means necessary. The trustee's undertaking to pay part of the costs of the agreement will do as well. But if the agreement is to execute a separation deed containing all usual and proper clauses, this includes, it seems, the usual covenant for indemnifying the husband, so that the usual consideration is in fact present (o). In the earlier cases, no doubt, it was supposed that the contract was made valid in substance as well as in form only by the distinct covenants between the husband and the trustee as to indemnity and payment, or rather that these were the only valid parts of the contract. But since Wilson v. Wilson (p) and Hunt v. Hunt such a view is no longer tenable: in Lord Westbury's words "the theory of a deed of separation is that it is a contract between the husband and wife through the intervention of a third party, namely the trustees, and the husband's con (1) Besant v. Wood, 12 Ch. D. at 623; Marshall v. Marshall, 5 P. D. 19. (m) Hope v. Hope, 8 D. M. G. 731, (n) See Dav. Conv. 5, pt. 2, 1079. (p) On the effect of that case see the remarks in the House of Lords in a subsequent appeal as to the frame of the deed, Wilson v. Wilson, 5 H. L. C. 40; and by Lord Westbury, 4 D. F. J. 234. tract for the benefit of the wife is supported by the contract of the trustees on her behalf" (q). A covenant not Minor to sue for restitution of conjugal rights cannot be implied, to separapoints as and in the absence of such a covenant the institution of tion deeds. such a suit does not discharge the other party's obligations under the separation deed (r). Subsequent adultery does not of itself avoid a separation deed unless the other party's covenants are expressly qualified to that effect (s). A covenant by the husband to pay an annuity to trustees for the wife so long as they shall live apart, remains in force notwithstanding a subsequent dissolution of the marriage on the ground of the wife's adultery (t). But the concealment of past misconduct between the marriage and the separation may render the arrangement voidable, and so may subsequent misconduct, if the circumstances show that the separation was fraudulently procured with the present intention of obtaining greater facilities for such misconduct (u). A separation, or the terms of a separation, between husband and wife cannot lawfully be the subject of an agreement for pecuniary consideration between the husband and a third person. But in the case of Jones v. Waite (x) it was decided by the Exchequer Chamber and the House of Lords that the husband's execution of a separation deed already drawn up in pursuance of an existing agreement is a good and lawful consideration for a promise by a third person. A separation deed, as we have above said, is avoided by subsequent reconciliation and cohabitation (y). If it were not so, but could remain suspended in order to be revived in the event of a renewed separation, it might become (a) 4 D. F. J. 240. (r) Jee v. Thurlow, 2 B. & C. 547. (s) Ib.; Evans v. Carrington, 2 D. F. J. 481. (t) Charlesworth v. Holt, L. R. 9 Ex. 38. (u) Evans v. Carrington, supra. (x) 1 Bing. N. C. 656, in Ex. Ch. 5 Bing. N. C. 341, in H. L. 9 Cl. & F. 101. In the Ex. Ch. both Lord Abinger and Lord Denman dissented. Cp. p. 179 above. (y) See also Westmeath v. Salisbury, 5 Bli, N. S. 339. Agree ments for future void. equivalent to a contract providing for a contingent separation at a future time: and such a contract, as will immediately be seen, is not allowable. However, a substantive and absolute declaration of trust by a third person contained in a separation deed has been held not to be avoided by a reconciliation (≈). As to all agreements or provisions for a future separation, whether post-nuptial (a) or ante-nuptial (b) (c), separation and whether proceeding from the parties themselves or from another person (c), it remains the rule of law that they can have no effect. If a husband and wife who have been separated are reconciled, and agree that in case of a future separation the provisions of a former separation deed shall be revived, this agreement is void (a). A condition in a marriage settlement varying the disposition of the income in the event of a separation is void (c). So is a limitation over (being in substance a forfeiture of the wife's life interest) in the event of her living separate from her husband through any fault of her own: though it might be good, it seems, if the event were limited to misconduct such as would be a ground for divorce or judicial separation (b). Likewise a deed purporting to provide for an immediate separation is void if the separation does not in fact take place for this shows that an immediate separation was not intended, but the thing was in truth a device to provide for a future separation (d). Nor can such a deed be supported as a voluntary settlement (e). (2) Ruffles v. Alston, 19 Eq. 539. (a) Marquis of Westmeath v. Marchioness of Westmeath, 1 Dow & Cl. 519, 541; Westmeath v. Salisbury, 5 Bli. N. S. 339, 393. (b) H. v. W. 3 K. & J. 382. Some of the reasons given in this case (at p. 386) cannot since Hunt v. Hunt be supported. (c) Cartwright v. Cartwright, 3 D. M. G. 982: note that this and the case last cited were after Wilson v. Wilson. (d) Hindley v. Marquis of Westmeath, 6 B. & C. 200; confirmed by Westmeath v. Salisbury, 5 Bli. N. S. 339, 395-7. (e) Bindley v. Mulloney, 7 Eq. 343. |