ABSTRACT

FENDER V ST. JOHN-MILDMAY

Fender V St. John-Mildmay is the landmark judgement given by House of Lords in UK. In
the present case, it is stated that a promise made by one spouse, after a decree nisi (an order
by a court of law stating the date on which a marriage will end unless a good reason not to
grant a divorce is produced) for the dissolution of the marriage has been pronounced, to
marry a third person after the decree has been made absolute is not void as being against
public policy, and an action for damages for breach of the promise is maintainable by the
third person. So was held by Lord Atkin, Lord Thankerton and Lord Wright.

The general rule against becoming engaged whilst still married does not apply when a decree
nisi has been pronounced. However, Lord Atkin said: There is real substance in the objection
that such a promise tends to produce conduct which violates the solemn obligations of
married life. Lord Thankerton: There can be little question as to the proper function of the
Courts in questions of public policy. Their duty is to expound, and not to expand such a
policy.

This case is cited by J -v- S T (Formerly J) CA (Bailii, [1996] EWCA Civ 1016, [1998] Fam
103). The parties had married, but the male partner was a transsexual, having been born
female and having undergone treatment for Gender Identity Dysphoria. After IVF (In
Vitro Fertilization) treatment, the couple had a child. As the marriage broke down the truth
was revealed.

The researcher in the final project will do a detailed case analysis of this landmark UK
judgment and find out the significance and the precedence set by this case.

AASHI GOYAL

2015002

4th SEMESTER

SECTION A