Cohen v Cohen (1929) 42 CLR 91
Arrangement to pay clothing allowance; whether intention to create legal relations
Facts
Mr and Mrs Cohen married in 1918 and separated in 1923. Before they were married, an arrangement was made whereby Mr Cohen would pay £100 per annum to his wife in quarterly instalments to buy clothing. The payments were made until 1920. Mrs Cohen sought recovery of the £278 she claimed was outstanding for the period between 1920 and 1923 when the couple separated.
Issues
Mr Cohen asserted there had been no consideration from Mrs Cohen in return for his promise to pay her the £100 per annum and, therefore, there could be no enforceable contract between the parties. Further, he claimed the arrangement was merely an informal domestic arrangement between husband and wife. There had been no intention to create legal relations and there could be no legally enforceable obligation on him to make the payments. Mrs Cohen claimed Mr Cohen had promised her to pay the sums to her and although she made no averments in her statement of claim as to what the consideration was for this purported contract, the court considered whether the marriage itself could amount to the requisite consideration.
Decision/Outcome
Mrs Cohen was unsuccessful in her claim. There was no consideration given for the promise of Mr Cohen because the contract for marriage had been made before the promise to pay the clothing allowance. In any event, the arrangement amounted to a domestic arrangement between husband and wife. There could not be said to have been any intention to create legal relations and there was, therefore, no legally enforceable contract.
Updated 19 March 2026
This article accurately describes the High Court of Australia decision in Cohen v Cohen (1929) 42 CLR 91. The case remains a recognised authority on the presumption against an intention to create legal relations in domestic and family arrangements, and continues to be cited in Commonwealth contract law materials. The legal principles it illustrates — that domestic arrangements between spouses are presumed not to give rise to legally enforceable contracts, and that past consideration is no consideration — remain good law. Readers should note that this is an Australian authority, not an English one. The equivalent leading English authority on intention to create legal relations between spouses is Balfour v Balfour [1919] 2 KB 571, which established the same presumption and is the primary case cited in English law curricula. The article remains accurate as a description of the case and the principles it stands for, but students should be aware of its Australian origin when applying it to English law problems.
