first mechanisms that judges can use to depart from a judicial precedent is distinguishing.

This
method can be used by a judge to avoid following a past decision. It is used in situations where the
judge draws a distinction between the current case and a previous case which ordinarily he or she
would be bound by, they would then proceed by showing that the facts differ and not suffice to bind
them. If a judge finds that the material facts of their present case are sufficiently different to the
previous precedent, then he is not bound by the previous case. This was shown in the differences
between Balfour v Balfour (1919) and Merrit v Merrit (1971).

In the case of Balfour v Balfour (1919), the husband was about to travel for work to Ceylon. Before
leaving he agreed to pay his wife a monthly allowance but failed to do so. The wife sued for the sum
but the courts held that this was a domestic agreement and therefore the parties didn’t intend to
create legal relations. However , in the case of Merrit v Merrit (1971), the husband agreed to pay the
wife a monthly maintenance and in return for the wife paying for the charges to their matrimonial
home he wrote and signed a document that he would transfer the said property to her. He later
failed to transfer the property to the wife. The court held that there was a valid agreement because
the parties had the intention to create a legal relation when the matter was put in writing and the
wife had provided consideration by agreeing to pay for the mortgage to the house. Although both
cases involve husband and wife, in Balfour v Balfour, it was merely a domestic arrangement meaning
there was no legal intention. However, in Merrit v Merrit, the agreement was made after they had
split up and making the agreement legally