A. DOMESTIC / SOCIAL AGREEMENTS:
PRESUMPTION: THAT THE PARTIES DID NOT INTEND TO CREATE A LEGALLY ENFORCEABLE AGREEMENT - Domestic assumption applies in these circumstances: 1. HUSBAND and WIFE --
a) If living together in harmony at the time agreement made = Social presumption applied (Balfour v Balfour) [holiday - money agreement - later separated] BUT b) If separated at time agreement made = Social presumption rebutted [particularly maintenance agreements] (Merritt v Merritt) PRESUMPTION IS REBUTTED - A Domestic/Social presumption will usually be rebutted if the consequences of breaking the agreement create a hardship for one of the parties. A DOMESTIC/SOCIAL
1. HUSBAND/WIFE agreements where separated at time of agreement (particularly maintenance agreements) (Merritt v Merritt) [transfer of property]; This presumption may be rebutted by evidence to the contrary. This evidence may consist of:
A written agreement:
Where the parties have separated:
Merritt v Merritt  1 WLR 1211
Lord Denning explained the decision in Merritt v Merritt in this way, In all these cases the court does not try to discover the intention by looking into the minds of the parties. It looks at the situation in which they were placed and asks itself: Would reasonable people regard this agreement as intended to be legally binding? Lord Denning is really saying that looking on from the outside, as the court is when making a judgment, it would be difficult to decide the parties intended in their minds that what they said should be legally binding. In addition there is often very little concrete evidence about what the parties intended, so that is why the court makes a presumption that in these situations the parties do not have legal intent. It can be seen that intention to create legal relations therefore seeks to keep agreements between family and friends outside the courts jurisdiction.