Karp v Kuhn

• Judge: Roper J and Williamson AJ
• Judgment Date: 18 October 1948
• Hearing Date: 23 September 1948
• Court: Transvaal Provincial Division

Roper, J.:

I have had the advantage of seeing the reasons for judgment of my Brother WILLIAMSON, and agree that the appeal should be dismissed on the grounds stated by him. In my view collusion consists in our law in an agreement between the parties to a suit to suppress facts, or to put false evidence before the Court, or to manufacture evidence, in order to make it appear to the Court that one of the parties has a cause of action, or a ground of defence, which in fact he has not. The agreement between the parties was clearly not collusive in that sense.

The question whether it was contrary to public policy as being in derogation of marriage is a more difficult one. Under the civil law any condition which encouraged divorce for a pecuniary benefit was void on grounds of public policy, (Wessels, Contracts (Vol. 1, para. 523, p. 177)), and it is the policy of our law to discourage contracts aiming at the dissolution of marriage (see, for example, Kiely v Dreyer (1916 CPD 603); Staples v Marquard. (191 CPD 181); Friedman v Harris (1928 CPD 43)). This is because such contracts are in general harmful to the interests of the community. It is however not correct to say simply that because a contract aims at the dissolution of a marriage it is therefore void as being contrary to public policy. The upholding of the marriage state is only one of several objects of public policy. It is not an overriding consideration. Another not less important consideration of public policy is that contracts freely and voluntarily entered into by persons competent to contract shall be enforced by courts of justice; and it is for obvious reasons against public policy that husband and wife should be perpetually separated (Davis v Davis (W.L.D., 6/4/1937)). Where a marriage has been wrecked beyond

Roper J

hope of salvage the argument of public policy loses much of its force, and in such cases, notwithstanding the law's traditional antipathy to steps aimed at the dissolution of marriage, even Judges have not hesitated to express the view that divorce produces a less undesirable state of affairs than judicial separation without hope of reconciliation (see, for example, Van Broembsen v Van Broembsen (1948 (4), S.A.L.R. 38)). The principle invoked on behalf of the appellant is therefore not to be applied rigidly, without regard to the facts of the particular case and heedless of all other possible considerations that may affect the interests of the community. In considering any particular contract which is attacked as aiming at a dissolution of marriage that feature of the agreement must be balanced against other considerations affecting the public good. The question to be answered is whether the dissolution of a marriage such as that under examination, in the light of all the circumstances, has a tendency to be harmful to public interests. 'Even though the contract is one which prima facie falls under one of the recognised heads of public policy, it will not be held illegal unless its harmful qualities are indisputable.' (Cheshire and Fifoot, Contracts, page 223.) As was said by LORD ATKIN in Fender v St. John Mildmay (1928, A.C. page 12) 'the doctrine should only be invoked in clear cases in which the harm to the public is substantially incontestable'.

The history of this particular marriage has been fully set out in my Brother WILLIAMSON'S reasons and it is unnecessary for me to refer to it further than to say that the marriage had turned out a hopeless failure; that the parties had been living apart under a judicial separation order for eleven years; that a reconciliation between them, and their renewed cohabitation as man and wife, were quite out of the question: and that at the time of the agreement the marriage tie was only being kept in existence because the wife was unwilling to face a dissolution without financial provision for the future of herself and her child. Where the facts are such as those revealed in the present case, to keep the parties tied to one another in the bonds of a marriage which has become a sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond. In saying this I do not of course suggest that either party in the present case has been guilty of immoral conduct. I am considering the matter simply as one of general tendency.

In my view the consideration of public policy which tell as a

Williamson AJ

general rule against the recognition by the courts of agreements aimed at dissolution of marriage is outweighed by the other considerations which I have mentioned, and the agreement should not be held void on the ground of public policy.

Judgment

Williamson, A.J.:

The respondent in this matter was the plaintiff in an action in a magistrate's court in which she sought to recover the sum of £37 10s. from the appellant as the surety for the due payment by one Karp of certain monthly instalments of £50 in terms of an agreement between Karp and the respondent. The amount of £37 10s. was the balance of the monthly instalment due in respect of the month of September, 1947, Karp having paid only £12 10s. for that month. Whilst admitting in her plea that she had signed as surety under renunciation of all material benefits as alleged, the appellant denied liability on the ground that the debt created by the agreement referred to in the summons was unenforceable because the agreement itself was collusive and contra lonos mores and therefore invalid. The magistrate found that there was no collusion and gave judgment in favour of the respondent in the amount claimed with costs. The present appeal is against the whole of the magistrate's judgment. The notice of appeal sets out five grounds upon which the magistrate is said to have erred in fact and three grounds upon which it is averred he erred in law. The only material ground in relation to the findings of fact to which reference need be made, is that the magistrate erred in failing to find that the intention of the parties to the agreement between the respondent and Karp was that the respondent was bound by that agreement to claim a decree of divorce on the ground of malicious desertion by Karp. In regard to the grounds upon which the magistrate is said to have been wrong in law, it is again only necessary to refer to the submission that he should have found that the agreement between the respondent and Karp, being an agreement that the respondent would claim a restitution order and being entered into at a time when there could not in law have been any malicious desertion on the part of Karp, was collusive.

The facts proved in evidence and the documents of record show that the respondent had married Karp, the appellant's son, in 1933. In terms of an ante-nuptial contract executed at the time, Karp inter alia agreed to donate to the respondent £500 worth of furniture and household effects and a certain policy of life insurance for £1,000. The parties to this marriage lived together until May,

Williamson AJ

1935. Thereafter Karp sued the respondent for restitution of conjugal rights and she counterclaimed for a judicial separation. This dispute was eventually settled in November, 1937, by the withdrawal of Karp's action, and by the making of a decree of judicial separation at the suit of the respondent. According to the evidence of Karp given before the magistrate, the respondent was willing at that time to give him a divorce provided he paid her £4,000; but to this he was not agreeable. At the time of the judicial separation, Karp was ordered to pay maintenance for the respondent and the one minor child of the marriage at the rate of £15 per month. The respondent and Karp never thereafter lived together but the latter said that through his solicitors he made several attempts prior to and up until 1939 to obtain a divorce without success. In 1944 he wrote to the respondent asking if she would return to him if he made a home for her. She replied that in that event she would return to him. He did nothing further in the matter because he had no intention of resuming marital relations with her and only wrote the letter to find out what her attitude would be. In fact he made it abundantly clear that he never at any time after the separation intended to live with her again. He said in addition that the two years during which they did cohabit, 'were most unpleasant', that under no circumstances would he ever return to her and that at all times he wanted her to divorce him. It appears that during the course of the earlier years of separation, Karp was often in arrear with payments of maintenance and that on something like thirty occasions legal proceedings were instituted against him for failing to make due payment. He would seem to have been in frequent financial difficulties; his estate was sequestrated in 1937 and he was rehabilitated in 1944. By 1946 the basic monthly maintenance had been raised to £18 10s. by agreement and in addition he was supposed to be paying a further £5 10s. per month in liquidation of accumulated arrears.

This was the state of affairs when on September 4th, 1947, the respondent's attorneys wrote to the attorneys of Karp that in view of the latter's improved financial position, an increase of the maintenance payable by him was demanded. An amount of £50 per month was suggested and it was stated that unless Karp acceded to the request, an action would be immediately instituted in the Supreme Court for a variation of the original order of court as to maintenance. Thereafter there was telephonic communication between the attorneys and on September 19th the respondent's

Williamson AJ

attorneys wrote saying that, in response to the request made, they were staying proceedings until September 23rd, but that if a satisfactory reply had not been received from Karp by that date, the proceedings previously mentioned would be taken. In fact a...