case 9,2003 抚养协议的效力

Darke v Strout [2003] EWCA Civ 176 (28 January 2003)
同居关系破裂；书面协议；家庭约定是否产生法律关系；约因；效力

上诉人，也就是女方，Darke，和被上诉人Strout，从1991年起开始同居，生有两个孩子，1992年8月以共同的名字卖了房子。1997年二人关系开始恶化，于是决定结束他们之间的关系。房子的情况大致是：24, Victoria Lane had been purchased in joint names, was owned by the parties as joint tenants in equity, and was subject to a mortgage in favour of the Halifax Plc under which they were jointly and severally liable as borrowers. 1998年月6日，被上诉人Strout给上诉人Darke一封信，双方确定了他们未来的义务和权利。双方都有签字。文件的大致内容是：

"Dear Katherine,
I am writing to confirm the following points:
1) Maintenance payments to yourself are as follows:
- Rent on 12 Riverside Road, at ￡415 per month (paid directly to landlord)
- Maintenance payments at ￡600 per month (paid directly to you)
- Nursery fees for Bethany at ￡75 per month (paid directly to you.
- Car insurance at approx. ￡27 per month (paid directly to insurer)
- TV & Video rental at ￡32 per month (paid directly to Radio Rentals)
The grand total is, therefore: ￡1,149 per month.
Should you purchase a house, or change any of the above elements, the grand total will not decrease. The above payments will continue until there are any significant changes in your personal circumstances.
2) I will pay you 50% of the surrender value of the endowment policy for 24 Victoria Lane. I will pay this to you once I have received payment from London & Manchester Assurance Company. The estimated value to you is ￡1,700.
3) I will be willing to act as guarantor for any mortgage arrangement you make in order to purchase a house for you and the children. This will not give me any claim to ownership for any house you purchase.
4) You will sign the required paperwork to transfer ownership of 24 Victoria Lane, and any associated endowments to myself as sole owner.
Please sign below as acceptance of the above. Whilst there are no timescales attached to the above terms, the overriding objective is to provide a home and financial support for you and our children for as long as this is required, and we will change the details of the above only by our joint agreement.
Yours sincerely.
Paul Strout"

后来女方在兰凯斯特上大学，读一个文学学士学位。但是，男方在2000年1月决定减少付款。女方无力支付房租，被迫搬家并结束读书。2000年4月，Child Support Agency，这个机构做出一项评估，认为男方应当每月向女方支付706英镑。2001年3月13日在兰凯斯特郡法院，双方开始了诉讼。主要理由是两项：absence of consideration and absence of intention to create legal relations，也就是缺乏约因，和缺乏产生法律关系的意图。普通法下，可强制执行的的合约关系，首先要有约因，也就是双方交换的一种价值，哪怕是一先令。另外，通常假设，在家庭关系中，双方没有产生法律关系的意图。比如说，妻子借给丈夫100英镑，这是不产生合约关系的。实际审理是在普莱斯顿郡法院，主审法官是Appleton法官大人（His Honour Judge Appleton），Mr Jay为女方，Miss Proops为男方出庭辩护。
法官的理由是三条：
"Mr Jay for his part was frankly left stranded on this issue of consideration by his own synopsis because it is plain as a pikestaff, reading his case synopsis, that he had formed a strategic view of the strengths of his client's case on this issue, as set out in paragraphs five, six and seven of the synopsis, and he wrote without reservation:
'As a result of the above agreement she left the former home, the property owned in joint names.'
As the evidence has come out, that simply is not correct, she had already gone. So his main item of consideration has disappeared during the course of the evidence."
他的结论是：the parties had no intention to create legal relations.双方没有产生法律关系的意图。因而，1998年6月的书面协议就不算数。

女方提出了上诉。THORPE大法官，CHADWICK大法官，和MORLAND法官进行了审理。
Thorpe大法官认为：那份书面协议不是一份独立的协议，而是一份抚养孩子的协议。他说：
First of all, the mother had the statutory right of application to the court for financial orders under paragraph 1 of Schedule 1 of the Children Act 1989. At the date that statute was brought into force she had the fundamental right to seek periodical payment orders in respect of each child. She further had the right to apply under paragraph 1(1)(d) for an order requiring a settlement to be made for the benefit of the children of property to which the parents were entitled, and equally an order under paragraph 1(1)(e) requiring either or both parents of the child to transfer to the applicant for the benefit of the child such property to which they were entitled. By the date of separation the right to apply to the court for a judicial determination of the level of periodical payments had been transposed into a right to apply for an
administrative assessment of that level under the Child Support Acts 1991 and 1995.
另外，此类协议的效力为1991年儿童援助法所承认："Nothing in this Act shall be taken to prevent any person from entering into a maintenance agreement."
他接着说：
Manifestly, this agreement constituted a compromise of the mother's statutory rights to both housing provision and continuing maintenance for the children, and equally a compromise of the father's obligations to provide housing and continuing maintenance for his daughters. 也就是，很明显，这协议构成了母亲（女方）对租房和抚养孩子的权利的承诺。
他进一步说：
First of all, the terms of the agreement itself suggest due formality and the creation of legal rights and obligations. Second, agreements of this character do have a special status in family law. As between spouses, agreements to maintain have had specific statutory recognition in section 35 of the Matrimonial Causes Act 1973, which provides a mechanism for parties who have chosen to settle their respective rights and obligations contractually to approach the court for the subsequent variation of the agreement by the exercise of a judicial discretion on the application of a statutory checklist. In just the same way the Children Act 1989 provided a mechanism to enable parties who had chosen to settle their respective rights and obligations in relation to children to approach the court for subsequent variation, particularly to reflect a relevant change of circumstance.
也就是说，对于那些关系处于破裂状态的夫妻或同居者，他们处于一种特别的地位。他们之间有关孩子抚养的协议得到了法律的特别承认。因此，1998年那份书面协议是有效力的。

Chadwick大法官回答了另一个问题：是否存在约因？
他说：
...The proposition that an agreement to transfer an equitable interest in property (whatever its value) is incapable of constituting consideration for reciprocal undertakings is a proposition which, for my part, I find impossible to accept. It seems to me irrelevant to the question whether or not the obligation to transfer an equitable interest in the property is capable of constituting consideration that the equitable right to redeem as against the mortgage company may be of no current financial value. The judge was, in my view, misled on that point; and accordingly reached the wrong conclusion. There was ample consideration for the agreement of 26th May 1998 in the agreement to transfer ownership of the property; as well, of course, as in the
compromise of the respondent's obligations, as a father, towards his children. 简而言之，在这一系列的财产安排中，已经有足够的约因。
最后，他指出，在Merritt v Merritt [1970] 1 WLR 1211, at page 1213，丹宁勋爵的观点：
The Master of the Rolls（指Lord Denning MR） pointed out in that case that, where parties are separated or about to separate, they require their relations to be finalised or, as he put it, cut and dried, and they do not intend to leave their future to mutual trust. The circumstances in which they are separated will often have destroyed any mutual trust between them. It may be presumed in the absence of cogent evidence to the contrary, that - when making an agreement on separation - the parties do intend to create legal relations. 也就是说，那些试图别居/分局的配偶将会取消/破坏他们之间的相互信托/双方信托关系。他们之间关于别居/分居的协议，确实产生法律关系。

Morland法官同意上述判决。

结果：上诉人（女方）胜诉。不过，法官建议他们通过ADR方式妥善解决女方的困境。