Formation of contract — SQE1 Contract question
A worked single-best-answer question on formation of contract, with why each wrong option is wrong — the way SQE1 traps candidates.
Asha and Ben are married but separated six months ago, and Ben now lives with his sister. At a meeting to sort out their finances, Ben wrote and signed a note stating: 'In return for Asha paying off the £4,000 balance on my personal credit card, I will pay her £500 per month until our divorce is finalised.' Asha paid off the credit card in full the following week. Ben made two monthly payments and then stopped, saying that arrangements between husband and wife are not legally binding.
Which of the following best describes whether Asha can enforce Ben's promise?
- AAsha cannot enforce the promise, because agreements between spouses are presumed not to be intended to create legal relations and nothing here rebuts that presumption.
- BAsha can enforce the promise only if it was made by deed, because promises between spouses are gratuitous.
- CAsha can enforce the promise, because any written agreement is conclusively presumed to be intended to create legal relations.
- DAsha can enforce only the payments already made, because a party to a domestic arrangement may end it on reasonable notice.
- EAsha can enforce the promise, because the presumption that domestic agreements are not intended to be binding is rebutted where the spouses have separated and record their arrangement in writing.
Show answer and reasoning
Rule: The presumption against intention to create legal relations in domestic agreements is rebutted where spouses have separated and record their arrangement, especially in writing.
- A The presumption is readily rebutted where spouses have separated and set out their terms in writing (Merritt v Merritt); Balfour v Balfour concerned spouses living together. (right rule, wrong facts)
- B Asha provided consideration by paying Ben's personal debt, so no deed is required. (wrong rule)
- C Writing is evidence of intention but there is no conclusive presumption arising from writing alone. (wrong rule)
- D There is no such general rule; if the agreement is binding Ben is bound by its terms until the divorce. (wrong rule)
Source: Merritt v Merritt [1970] 1 WLR 1211; Balfour v Balfour [1919] 2 KB 571