Preserving the Status of Marriage
The courts regard it as being in the interests of society to preserve the status of marriage. Certain types of contract which are regarded as threatening to the institution of marriage are therefore treated as illegal.
A contract between spouses agreeing to separate at some point in the future is invalid if it is made either before the marriage of during cohabitation. In Brodie v Brodie, Mr Brodie only agreed to marry the woman who was carrying his child if a written agreement to separate was drawn up. This among other things precluded the woman from bringing legal proceedings against him. The agreement was held to be contrary to public policy, and so could therefore not be enforced. The woman was free to take legal action.
This rule does not apply to an agreement which does not relate to the distant future, but is made at a time when the marriage has already broken down and in anticipation of immediate separation. It is not contrary to public policy for the parties to a failed marriage to make agreements about the distribution of their property, or for the maintenance of one party or the children of the marriage by the other. Nor does this rule affect arrangements made by spouses who have been separated, and are then reconciled, since in this situation the making of the agreement is likely to aid the reconciliation.
One type of agreement, which, on this basis, is clearly unenforceable in English laws, is the ‘pre-nuptial’ agreement common in the United States, particularly where one party is very wealthy. This type of agreement is made prior to marriage in order to avoid, or mineralise, disputes about the distribution of property should the marriage break down. Such an agreement will, however, be regarded as contrary to public policy by the English courts, and therefore unenforceable. Whether this should continue to be the case is arguable. It might be said that such agreements are supportive of the institution of marriage, in that they discourage parties from marrying for the wrong reasons (for example, ‘gold digging’) and from separating in order to obtain a share of the wealthier party’s fortune. At the moment, however, there is no sign of a change in English law on this topic.
Restraint of marriage
A contract which imposes liability on a person if he or she marries is void. Thus, a promise by A that if he marries, he will pay a sum of money to C is unenforceable. Similarly, a promise by A to make a payment if he marries anyone else other than B will also be unenforceable
Marriage brokage concerns a contract whereby A promises to procure a marriage for B. the professional ‘matchmaker’ cannot make an enforceable contract for his or her services. The rule is not limited to contracts to procure marriage with a particular person. Thus, in Hermann v Charlesworth, Miss H entered into an agreement under which, if the defendant introduced her to someone whom she married, Miss H would have to pay the defendant £250. She paid the deposit which, after several unsuccessful introductions, she sought to recover. The Court of Appeal held that the contract was illegal as being contrary to public policy. It is difficult to see, however, why such contracts are any more harmful than those between ‘dating’ or ‘introduction’ agencies and their clients, which have never been regarded as contrary to public policy. Such contracts do not, of course, depend on marriage between those introduced.