Court of Appeal
Published November 14, 2007
Soulsbury v Soulsbury
Before Lord Justice Ward, Lord Justice Longmore and Lady Justice Smith
Judgment October 10, 2007

An agreement between spouses to compromise an ancillary relief claim need not be approved by the court to have legal force.

The Court of Appeal so observed when dismissing the appeal of the defendant, Kathleen Soulsbury, as personal representative of the estate of her late husband, Owen Soulsbury, from Judge Cowell who, at Central London County Court on June 27, 2006, held that the estate was liable to pay the sum promised and he entered judgment for the claimant for £116,750 including interest.

The claimant, Elizabeth Soulsbury, had been married to the deceased in 1966 and in 1986, following their divorce, the court made a periodical payment order for her. In 1993, she agreed to waive her periodical payment claim on the promise of the deceased to make provision for the payment of £100,000 to her in his will and he did so.

On the morning of October 10, 2002 the deceased married the defendant and died the same evening. By virtue of section 18 of the Wills Act 1837 the effect of that marriage was to revoke the deceased’s will and the defendant claimed that the £100,000 promise was not enforceable.

Mr Charles Howard, QC and Mr Mark Dubbery for the defendant; Mr Richard Millett, QC and Mr Mark Twomey for the claimant.

LORD JUSTICE WARD said that although a will was always revocable, a testator could bind his assets so that his personal representative had to give effect to that agreement at the expense of the beneficiaries: see Williams on Wills (8th edition) paragraph 3.1).

An agreement converted into a court order had the advantage of a means of enforcement available whereas a party had to sue on an agreement to obtain eventual enforcement. But settlement without recourse to the courts was none the less enforceable.

His Lordship referred to the dictum of Lord Justice Thorpe in Xydhias v Xydhias ([1999] 1 FLR 683, 691) that the only way of rendering a bargain enforceable was to ensure that the applicant converted the concluded agreement into an order of the court. But that was in conflict with Goodinson v Goodinson ([1954] 2 QB 118), Gould v Gould([1970] 1 QB 275), de Lasala v de Lasala ([1980] AC 546) and Kelley v Kirsten ([1998] 1 FLR 996).

The conclusion expressed by Lord Justice Thorpe, that if there were negotiations to compromise a claim for ancillary relief, then there was a duty to seek the court’s approval, was too wide. Even an agreement subject to the approval of the court was binding to the extent that neither party could resile from it.

In this appeal there was no pending application for any financial relief to compromise. The parties did not envisage going back to court to approve it. There was no need to do so. Either could have done so but neither chose to do so. The event upon which payment depended came to be fulfilled.

Lord Justice Longmore delivered a concurring judgment and Lady Justice Smith agreed.

Solicitors: Warner Goodman & Streat, Southampton; Anthony Louca, Camden Town.

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