While under the principles laid out in Balfour v Balfour, domestic agreements between spouses are rarely legally enforceable, this principle was rebutted where two spouses who formed an agreement over their matrimonial home were not on good terms.

Lord Denning MR stated: The husband and the wife were married as long ago as 1941.

It reflected the legal position when a house is acquired by a husband and wife by financial contributions of each.

He wrote these words on a piece of paper: ‘In consideration of the fact that you will pay all charges in connection with the house at 133, Clayton Road, Chessington, Surrey, until such time as the mortgage repayment has been completed, when the mortgage has been completed I will agree to transfer the property in to your sole ownership.

She brought an action in the Chancery Division for a declaration that the house should belong to her and for an order that he should make the conveyance.

The judge, Stamp J, made the order; but the husband now appeals to this court.

The first point taken on his behalf by counsel for the husband was that the agreement was not intended to create legal relations.

In such cases their domestic arrangements are ordinarily not intended to create legal relations.

The majority of the court thought that those words introduced such an element of uncertainty that the agreement was not intended to create legal relations.

They did not differ from the general proposition which I stated ([1969] 3 All ER at 730, [1970] 1 QB at 280): ‘When … husband and wife, at arm’s length, decide to separate and the husband promises to pay a sum as maintenance to the wife during the separation, the court does, as a rule, impute to them an intention to create legal relations.’In all these cases the court does not try to discover the intention by looking into the minds of the parties.

It looks at the situation in which they were placed and asks itself: would reasonable people regard the agreements as intended to be binding?

Counsel for the husband sought to say that this agreement was uncertain because of the arrangement for £40 a month maintenance.

Finally, counsel for the husband said that, under s 17 of the Married Women’s Property Act 1882, this house would be owned by the husband and the wife jointly; and that, even if this house were transferred to the wife, she should hold it on trust for them both jointly.