The complainant in the case in discussion is Mr. Balfour who lived in Ceylon, Sri Lanka with his wife. His wife had been sick and wanted medical treatment. She was recommended to live in England by her psychiatrist. An agreement was reached between Mr. and Mrs. Balfour that whenever Mr. Balfour went to Ceylon, Mrs. Balfour would stay back in England and that Mr. Balfour would pay her 30 pounds a month before he returned. When their partnership was good, this agreement was made but with time problems cropped up and their relationship soured. He wrote to her after his return to Ceylon suggesting that it would be easier for their split to become permanent. Subsequently, the parties split and a dispute emerged as to whether the arrangement was still enforceable and shortly after that, Mrs. Balfour sued Mr. Balfour for restitution of her conjugal rights and demanded alimony equal to the sum that her husband had promised to give.


An additional judge of the King’s Bench Division headed by Justice Sargant, held that Mr. Balfour was under a duty to support his wife and that there was a legitimate arrangement between the husband and the wife. The lower court decided in favor of the complainant and held that the defendant’s commitment to give money was enforceable. Mrs. Balfour issued a decree and an alimony order in December. The decision of the lower contract in which it found the contract binding was appealed by Mr. Balfour.


  1. Does intention of both parties to make an be legally binding in order to be an enforceable contract?
  2. Under what circumstances will a court decline to enforce an agreement between spouses?


The rule applicable in this case relates to the division of contract from promise and has some legal contractual power to be enforceable as a contract in a court of law between spouses. The unusual characteristic of the suit was that Mrs. Balfour was appealing in contract arguing that Mr. Balfour should keep sending her money for her maintenance not because he married her, but that he agreed that he would do so. A husband and wife were involved in this situation, but this relationship is just a domestic or social partnership or arrangement. We need some basic elements in that arrangement to implement that arrangement as a contract. These elements are consideration and legal intention to form a contract. Agreements such as the one in discussion are entirely beyond the purview of contracts.


In the case in discussion, Justice Sargant, held at first instance that the agreement of Mrs. Balfour was adequate consideration to make the contract enforceable and  this was appealed by the defendant. But it was held in the court of appeal by Warrington LJ, Duke LJ, Atkin LJ bench that it is not an enforceable contract. Warrington LJ and Duke LJ did so largely because they questioned the care offered by the partner. On the other hand, Atkin LJ invoked the desire to establish legal relations to determine the case, a doctrine that was contained in textbooks up until that point. It should be argued that the doctrine is based on public policy, that is to say the rule of contract does not interfere in domestic cases as a matter of policy.

In the Court’s opinion, reciprocal promises made in the sense of an ordinary domestic partnership between husband and wife normally do not give rise to legally binding contract because they are not intended to be legally binding. The Court did, however accept that there could be situations in which a legally binding relationship may come into existence between a husband and a wife. The case is extraordinary, not evident from a bare of declaration of evidence and opinion. The argument was pursuant to contracts and not under the conjugal rights retained by Mrs. Balfour. This was an extraordinary argument and the judgement of the lordship would demonstrate how hesitant they were to expand the rule of contracts into the field of matrimonial rights and responsibilities in which it had historically played very little role have almost no precedents. The judgement of Lord Atkin attracted new interest and gained popularity with the necessity of intention to establish legitimate partnership.

The contractual intention test is a question of objectivity, not of subjectivity. What counts is what an average citizen might say and their intention to be under a given circumstance. Apart from the present case, it is clear from a variety of decisions that it is important to include intent to develop a legal partnership. It is still an open question whether the prerequisite of intent to contract is applicable in India under the explicit provisions of the Indian Contract Act, 1872.


The Balfour’s agreement was not a legally enforceable contract, but rather an ordinary domestic agreement. There was no intention of forming civil partnerships, and Mrs. Balfour was unable to sue over the supposed violation of the statute. The lower court’s ruling was overturned by the Court of Appeal Civil Division. Whatever the precise position of the assumption of Atkin Lj, and this indeed is a topic on which there has been some controversy, its effect has been to strengthen the impression that contractual and personal partnerships are distinct domains. We must consider the nature of the presumption that the parties to domestic agreements do not intend to build a legal obligation, the reasons used by the courts to rebut the presumption, the logic of the presumption and ultimately, the connection between the doctrine of intention to create legal obligation and the doctrine of consideration in context of domestic relations.


  • S Leake The Elements of the Law of Contracts (London: Stevens and Sons, 1st edn, 1867) p 9.
  • M Freeman ‘Contracting in the Haven: Balfour v Balfour Revisited’ in R Halson Exploring the Boundaries of Contract (Farnham: Ashgate/Dartmouth, 1996) p 68-70.
  • Aouni Bey Abdul Hadi. “The Balfour Declaration.” The Annals of the American Academy of Political and Social Science, vol. 164, 1932, pp. 12–21. JSTOR,
  • Muskan Jain “Case Analysis: Balfour v Balfour”, LAWLEX (May 22, 2020, 15:30)

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