Ebanks v Ebanks

• Jurisdiction: Jamaica
• Judge: (Waddington, Eccleston and Luckhoo, JJ.A.)
• Judgment Date: 05 April 1968
• Date: 05 April 1968
• Court: Court of Appeal (Jamaica)

Court of Appeal of Jamaica

(Waddington, Eccleston and Luckhoo, JJ.A.)

C. EBANKS

and

K. EBANKS

R.C. Rattray for the appellant;

K. Brandon for the respondent.

Cases cited:

(1) Assunzione, The, [1953] 1 W.L.R. 929; [1954] 1 All E.R. 278, dicta of Singleton, L.J. applied.

(2) Beattie v. Beattie, [1938] P. 99; [1938] 2 All E.R. 74, dicta of Merriman, P. applied.

(3) Bennett v. Bennett, [1952] 1 K.B. 249; [1952] 1 All E.R. 413, dicta of Denning, L.J. applied.

(4) Hamlyn & Co. v. Talisker Distillery, [1894] A.C. 202; [1891–4] All E.R. Rep. 849, dicta of Lord Watson applied.

(5) Keiner v. Keiner, [1952] W.N. 139; [1952] 1 All E.R. 643.

(6) Pardy v. Pardy, [1939] P. 288; [1939] 3 All E.R. 779.

(7) R. v. International Trustee for Protection of Bondholders AKT, [1937] A.C. 500; [1937] 2 All E.R. 164, dicta of Lord Atkin applied.

Family Law-financial provision-maintenance agreement-proper law-agreement made in Florida involving payments to wife”s US attorney insufficient connection with Florida law if husband is Caymanian seaman temporarily in Florida and wife is Caymanian resident

Contract-repudiation-waiver of breach-repudiation inferred from ceasing to perform contractual obligations for nine years-no waiver of breach or discharge of contract if other party unable to enforce contract during that time but sought to do so as soon as practicable

Family Law-financial provision-maintenance agreement-cessation of payments when wife self-supporting-inapplicable if wife compelled to work by husband”s failure to pay maintenance and agreement not terminated if wife able to maintain herself

Family Law-financial provision-maintenance agreement-clause relieving husband of obligation to pay costs in subsequent divorce proceedings unenforceable and possibly illegal

Family Law-financial provision-maintenance agreement-provision that agreed maintenance payments to be part of settlement on divorce is valid-normal practice for court to sanction if not collusive

The respondent wife brought an action against the appellant husband in the Grand Court seeking specific performance of a separation agreement requiring the payment of maintenance.

The respondent and the appellant, both Caymanians, were married in the Cayman Islands in 1951. They lived together for seven weeks and for the following five years the appellant was away at sea. The appellant then asked the respondent for a divorce and though she went to Florida to meet him and attempted a reconciliation, the appellant still maintained his request.

The respondent filed maintenance proceedings in Florida but the appellant sought a compromise and offered to pay maintenance if she discontinued the court proceedings. She agreed and a deed of separation was drawn up and executed by both parties in December 1956. Clause 5 of the deed referred to the respondent”s inability at the time to seek employment and stipulated that the appellant would pay an agreed sum

monthly until she remarried or became self-supporting. Clause 6 excluded the appellant”s liability for any of the respondent”s costs and expenses in divorce proceedings and further stipulated that the whole agreement ‘shall be made a part and parcel of any final decree of divorce.’

The appellant made the payments for the first three months only. The respondent tried to contact him but failed and returned to the Cayman Islands in March 1957 where she obtained employment.

When the appellant returned to the Cayman Islands in March 1966, the respondent wrote to him asking for the payments but heard nothing from him. She first brought maintenance proceedings which she withdrew because they were not the proper procedure and then she filed the present suit for specific performance of the contract.

The Grand Court gave judgment for the respondent, awarding her the amount claimed to cover the back payments and costs.

On appeal, the appellant submitted that (a) the court had been wrong to apply the law of the Cayman Islands as the proper law of the contract as the only connection with it of any significance was that the parties were domiciled in the Islands. The proper law to apply was that of Florida because (i) it was the jurisdiction in which the contract had been made, (ii) moneys due under it were to be paid in US currency to the respondent”s lawyers in Florida, (iii) the agreement came about as a result of the respondent”s bringing proceedings in Florida, and (iv) a clause in the agreement called for dismissal without prejudice of the proceedings commenced by the respondent in Florida and there was no evidence that they had been dismissed; (b) the respondent had called no expert evidence to establish that the contract was enforceable in Florida and if it were, the Cayman court had no power to enforce it; (c) he had repudiated the contract when he ceased to make payments in 1957 and the respondent showed her acceptance of the agreement by bringing maintenance proceedings in 1966, contrary to its terms, thus discharging the contract; (d) alternatively, the contract terminated when the respondent obtained employment since this made her self-supporting; and (e) clause 6 made the deed void because it sought to substitute the agreement of the parties for a court order and was an attempt to fetter the discretion of the court in its consideration of maintenance.

The respondent submitted in reply that the jurisdiction of the court was properly founded since in the absence of an express statement in the contract on the law to be applied, it was the court”s duty to consider all the circumstances and determine the proper law in accordance with what just and reasonable persons would have intended had they thought of the matter at the time they made the contract. According to this test, the law applicable was that of the Cayman Islands.

Held, dismissing the appeal:

(1) Since there was no clear expression in the agreement of the law which the parties intended to apply to it, the court had properly considered the circumstances surrounding its making and the course contemplated by the parties for its performance. The respondent”s presence

and actions in Florida were only part of her attempts to save the marriage. The appellant was bound to appreciate that her stay there was only temporary and that she had soon to return to the Cayman Islands as she could neither reside permanently nor obtain work in the United States. The appellant, on the other hand, while he maintained his Caymanian citizenship and domicile, spent most of his life at sea and his contact with land depended on the port of call. Although the agreement was made in Florida and the payments were to be made in US dollars to the respondent”s lawyers there, it was reasonable and fair to conclude from all the circumstances that the law of the Cayman Islands was the proper law to be applied (page 96, line 29 – page 97, line 18).

(2) Repudiation of the agreement and acceptance of repudiation were to be determined on the facts with inferences to be drawn from the words and conduct of the parties. Since the appellant had never doubted to whom he should make the payments, it could be inferred...