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Balfour v Balfour
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Contract Law
“Domestic arrangements within the law of contract: A feminist examination of Balfour v
Balfour”
Antony Lias, LLB student, Birkbeck College, London University. September 2004.
ORIGINAL PARAGRAPH
PARAPHRASE
Contract law seeks to uphold the primacy of the individual whilst perpetuating the fiction that strangers
meeting in the market place to exchange commodities
are of equal bargaining strength. It has become a
metaphor for economic liberalism, freedom and
equality, and yet it is Balfour v Balfour which provides
one of the starkest examples of individual subjugation
and gender inequality. Throughout this paper, the
argument will be advanced that married women have
been denied the capacity to create an enforceable
contract within a “domestic arrangement”, due to the
doctrinal prominence of Balfour v Balfour and the
inherent bias that exists within contract law as a whole
This problematic case is centred on the enforceability of a “domestic” agreement between a husband and
wife, and the requirement that there should be an
intention to create legal relations. Here the husband
agreed to pay his wife a monthly allowance whilst he
was working away in Ceylon. Shortly after arriving in
Ceylon the husband informed his wife that it would be
better if they separated permanently. The wife
therefore sought to enforce this agreement in contract.
Although successful at first instance, it would be the
Court of Appeal, and in particular the judgement of
Lord Atkin, which would not only reverse that decision,
but in so doing establish an additional test of
enforceability that was both unnecessary and
particularly damaging to the development of equal
rights for women within the field of contract law.
Lord Atkin was of the opinion that “agreements such as these are outside the realm of contracts
altogether”, (1919 2 KB at 579) and that “one of the
most usual forms of agreement which does not
constitute a contract appears to me to be the
arrangements which are made between husband and
wife”. (1919 2 KB at 578) Lord Atkin then justifies his
decision on two grounds.
The first is a composite lack of intention in domestic agreements: “..they are not contracts because the
parties did not intend that they should be attended by
legal consequences”, (1919 2 KB at 579) whilst the
second is an overt policy consideration requiring that
the “floodgates” remain closed to such cases:
It would be of the worst possible example to hold that
agreements such as this resulted in obligations which
could be enforced in the Courts…the Small Courts of
this country would have to be multiplied one
hundredfold if these arrangements were held to result
in legal obligations. (1919 2 KB at 579)
Before offering a feminist deconstruction of the above -“
two points, it is necessary to understand the ideational
and substantive conceptions of women within contract
law, and how it provides a backdrop for denying
married women the equality afforded to men. We see
contract being viewed as the “paradigm of free
agreement”, (Pateman., 1993 p.59) ascribing to
human beings the necessary attributes to fulfil the
move from a status orientated position to one of
endowed freedom and equality within civil society.
However, Pateman argues that contract law is a
method by which patriarchal values are affirmed, and
women thereby subjected; it is intrinsically biased. A
clear example of the overt masculinity of the law can
be evidenced through the loss of a woman’s
individuality upon entering marriage. (Supra 1986 p
35)
The role of married women assigned by the law in _
1919 was that of dependents placed “in the same
category with criminals, lunatics, and minors as being
legally incompetent and irresponsible.” (Supra 1986 p
35) Women essentially moved as chattels from one
status relationship to another, namely from the father
to the husband. Aside from various restrictions on the
contractual capabilities of married women, the
decision reached in Balfour v Balfour appears to
reflect the dominant patriarchal values of the time.
Within the marriage arena, the wife is denied the
capacity to enter into a contract with, the husband, yet
the capacity to enter into the marriage contract is
unquestionably present. The paradox is all too clear;
women both lack and possess the capacity to enter
into contracts. One explanation provided is that upon
entering marriage, women revert back to a status
relationship, thereby leaving civil society for the “state
of nature”. It is however Peter Goodrich who provides
the most incisive account for such an existent state of
affairs, by simply stating that “..the wife lacks
contractual capacity because her will is not her own,
but that of her masculine partner.” (Goodrich 1996 p
26),
The Courts have reaffirmed the homosocial (Supra
1986 p 22) endeavours of a masculine dominated
society by failing to address the obvious inequities
presented in cases such as Balfour v Balfour, thereby
simultaneously ascribing women an inferior status in
civil society. The role of intention to create legal
relations within such a context is clearly a veil for
certain policy decisions, namely “..to keep contract in
its place; to keep it in the commercial sphere and out
of domestic cases.”(Hedley, 1985 p 391-415)
Intention becomes here a very attractive proposition
for “the courts to cloak policy decisions in the mantle
of private contractual autonomy.”( Hepple, 1970 p28)
This may explain judicial reluctance to intervene save
in cases where there has been detrimental reliance,
but it does nothing to redress the fundamental
imbalance in power in such relationships.
However, it is encouraging to note that in Pettitt v Pettitt, (1969 2 WLR 966) an indication was expressed
that the ruling in Balfour may be limited in application
due to it being an “extreme case” (1969 2 WLR 983)
which “stretched the doctrine [that in ordinary day-today life spouses do not intend to contract] to its limits.”
(1969 2 WLR 992) Whilst in Merritt v Merritt (19701
WLR 1211) the courts have accepted the validity of
domestic agreements when one side has already
performed their side of the bargain.
The strongest precedent established for judicial
encroachment into the private sphere, can be found in
the case of R v R (1991 4 ALL ER 481). Here the
ruling declared that the husband’s sexual access to
his wife was not absolute, and that rape within
marriage is now a criminal offence. Lord Keith added
that:
…the common law, however, is capable of evolving in
the light of changing social, economic and cultural
developments. Hale’s proposition [on the marriage
contract] reflected the state of affairs in these respects
at the time it was enunciated. Since then, the status of
women, and in particularly of married women, has
changed out of all recognition in various ways…
marriage is in modern times regarded as a partnership
of equals. (1991 4 ALL ER 481 )
R v R represents the logical deduction that if a wife _can either reject or consent to sexual contact within
the marital relationship, she is also capable of entering
into civil contracts. The ability to determine one's own
response to such an offer is indicative of capacity. It is,
however, a House of Lords ruling in a future case
which is needed to either uphold or abrogate the
presumption maintained in Balfour v Balfour that there
is no intention present in such agreements, and to
thereby assist in gender neutralising this particular
body of law and its concomitant masculine bias. The
decision in this case is indeed regrettable, because it
propagates discrimination based on gender. The
raison d’etre for its existence is not to ensure that
intention is always present, but to avoid making
serious policy decisions, which would entail exploring
the masculine bias of contractarian thought.
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