Psaltis v Schultz [1948] HCA 31

High Court of Australia Latham C.J. Dixon and Williams JJ. Psaltis v Schultz [1948] HCA 31

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 25 Latham C.J.

In this action Jessie Boyd Schultz sued George Victor Psaltis for damages for breach of promise of marriage. She was a married woman. Her husband on 31st August 1945 obtained a decree nisi for divorce against her. The promise to marry upon which the plaintiff sued was made in the middle of February 1946. On 29th July the plaintiff's solicitors wrote to the defendant claiming performance of his promise, and on 1st August the defendant's solicitor replied denying any promise to marry. The plaintiff issued the writ in the action on 6th August, alleging a promise to marry within a reasonable time, and relying upon the defendant's repudiation of his promise as a cause of action: Hochster v. De La Tour [4] . In November the plaintiff took proceedings for prematernity expenses against the defendant, and it was then discovered that the decree nisi had not been made absolute, though it might have been made absolute upon the application of either the plaintiff or her husband at any time after the end of February 1946—Matrimonial Causes Act 1899, s. 23. The decree was made absolute on 12th December 1946 upon the application of the husband. In February 1947 the plaintiff's declaration was amended. The first count of the amended declaration alleged a promise to marry after the decree nisi should be made absolute, and the second count alleged a promise to marry subject to and after the taking by the plaintiff within a reasonable time of any necessary steps to enable the marriage to be lawfully celebrated.

1. (1853) 2 El. & Bl. 678; [ 118 E.R. 922].

At the trial Owen J. directed the jury that the general rule was that an agreement to marry made between two persons, one or both of whom were then married, was against public policy and would not be enforced by the courts. There was, however, an exception (see Fender v. St. John-Mildmay [1] ) where a decree nisi for divorce had been made against one of the parties. In that case a promise to marry expressly after the decree should be made absolute had been held to be enforceable. His Honour said that if both parties knew that there was an impediment in the way of the plaintiff marrying it would be possible to imply a term in their agreement that the marriage was to take place only when the decree was made absolute, but that unless both parties knew that there was such an impediment such a term could not be implied. Accordingly his Honour left the following three questions to the jury:—