Your husband promises to give you GH¢2,000 every month while you are living apart.
You rely on that promise.
Then, a few months later, he stops paying.
Can you sue him?
Not necessarily.
Contract law generally presumes that agreements made in domestic or social settings are not intended to create legal relations. When it comes to husband and wife, the starting point is that ordinary arrangements made during the marriage are not meant to become legally enforceable contracts.
That was the position in Balfour v Balfour.
Mr Balfour was working in Ceylon while his wife remained in England because of health problems. Before he left, he promised to send her a monthly allowance.
He later stopped paying.
Mrs Balfour took the matter to court, but the court would not enforce the promise. The arrangement was considered a domestic agreement between husband and wife, rather than a contract intended to have legal consequences.
And if you think about everyday married life, you can see why the law starts from that position.
Imagine if every promise made during a marriage could potentially become a lawsuit.
“Promise me you’ll pay the electricity bill.”
“You said you’d pick up the children.”
“You promised we’d go on holiday.”
“You said you’d give me some money next month.”
Marriage would become a rather unusual place if every household promise came with the possibility of legal proceedings.
But what happens when the marriage has broken down?
That can change things.
In Merritt v Merritt, the husband had left the matrimonial home and was living with another woman. He and his wife were no longer living together as husband and wife.
The couple entered into a written agreement under which the wife would pay off the mortgage on their house, and the husband would then transfer the house to her.
The wife did her part.
The husband did not.
Unlike in Balfour, the court found that the agreement was intended to create legal relations and could therefore be enforced.
The circumstances mattered.
These were no longer two spouses making an ordinary arrangement in the course of a happy marriage. They were separated and making a formal agreement about an important piece of property.
The law does not say that husbands and wives can never make contracts with each other.
Rather, there is a presumption that ordinary domestic arrangements are not intended to be legally binding. That presumption can be displaced where the circumstances show that the parties intended their agreement to have legal consequences.
A written agreement dealing with a house and a mortgage between separated spouses is very different from an informal promise about household expenses between spouses living together.
So, if your spouse makes a promise to you, can you take them to court when they break it?
The answer depends on what was agreed, the circumstances in which it was agreed, and whether the parties intended the agreement to have legal consequences.
And there is a practical lesson here.
If you and your spouse are separating and making arrangements about property, money or other significant matters, don’t assume that the fact that you are married means the agreement cannot be enforced.
Put important agreements in writing.
Because sometimes, the difference between “my husband promised me” and “we had an agreement” is more than just the words you use.