TOPIC 4:
PROMISE TO MARRY
UNDER CIVIL LAW
Consideration
Requirements of a valid
promise to marry
Capacity
- Single
- age
Breach - Not prohibited to marry
Promise to Marry
Defences – 3 alternatives
a) Damages
Consequences
b) Return of gifts / rings
Definition
◦ A contract to marry or an agreement to marry refers to the contract
or agreement where parties agree that they will marry some time in
the future.
◦ It is also known as engagement or betrothal.
Four pertinent questions to be asked:
• Is there a valid contract or agreement?
• If yes, has there been a breach of that
contract?
• If yes, does the defendant have any defence?
• If none, what are the remedies?
Requirements of a valid contract to marry
CONSIDERATION CAPACITY AGE
(i) Consideration
◦ Sometimes there are considerations in the form of an overt action on the part of the
promisee, for example the promisee doing some act requested by the other party.
Harvey v Johnston [1848] 6 CB 195
◦ The defendant promised to marry the plaintiff within a reasonable time after her
arrival at Lisahoppin for the purpose of marrying the defendant. She was single and
at that time resided in Toronto Canada. She went to Lisahoppin as requested but the
defendant failed to carry out his promise to marry. The defendant objected saying that
there was no sufficient consideration for his promise. Held, there was perfectly good
consideration.
◦ Promisor / offeror makes a promise
to marry the other party (promisee /
acceptor)
Offer and
◦ Normally, the consent of the other
acceptance
party (promisee) to marry the
promisor is sufficient to constitute
consideration.
(ii) Capacity
◦ Both parties must be single
◦ The religion of one or both parties to the contract to marry does not prevent
them from marrying
◦ Does not contrary to public policy
◦ They should not be within the prohibited degree of relationship
◦ Promise to marry during the period of decree nisi?
◦ Spiers v Hunt [1908] 1 KB 720
◦ The df, aged 70, promised to marry pf, aged 31, upon the death of his wife. The Pf knew
that the df was a married man. The df’s wife was expected to die suddenly and early due to
heart ailment. She did not die until 8 and a half years later. The df refused to marry the pf
and she sued for breach of promise. The court decided in favour of Df because the promise
was illegal due to the incapacity of the df.
◦ Wilson v Carnley [1908] 1 KB 729
◦ Exceptional cases (means, promise is valid)-
◦ Shaw v Shaw and Another [1954] 2 QB 429 – pf did not know that the df still married
when the promise is made
◦ Fender v St. John-Mildaway [1938] AC 1 – decree nisi
◦ Mary Joseph Arokiasany v Sundram [1938] MLJ 4 – difference of religion is not an
impediment
(iii) Age
◦ Sec. 11 Contracts Act 1950 –Every person is competent to contract who
is of the age of majority according to the law to which he is subject.
◦ The issue is whether or not the same principles applies to a contract to
marry?
◦ Refer – Sec. 10 and Sec. 12 of the LRA
◦ Rajeswari v Balakrishnan [1958] 3 MC 178
◦ Fernandes v Gonsalves AIR 1925 Bom 97
◦ Khimji Kuverhi v Lalji Karamsi AIR 1941 Bom 129
Breach of Betrothal
◦ An action for breach will lie against the party in breach whether it
be the man or the woman.
◦ Where a specific date of marriage is not fixed or known, the
marriage should take place within a reasonable time.
◦ If a party demands for the marriage, the other party must have a
reasonable excuse for not wanting to go through with the marriage.
Cases
◦ Harrisonn v Cage (1698) Carth 467
◦ The pf had promised to marry the df’s wife when she was still single and she had made a
similar promise to him. When the pf requested that the marriage be solemnized, the df’s
wife refused and subsequently married the df. Held, there was a breach of promise to marry.
◦ Frost v Knight (1872) LR 7 Exch 111
◦ The df promised to marry the pf on the death of the df’s father. While the father was still
alive, the df’s had announced his intention of not fulfilling his promise on his father’s death
and broke off the engagement. The pf commenced an action for breach of promise to marry,
without waiting for the father’s death. The court held that it was possible for the pf to bring
the action immediately.
Defences
A contract of to The plaintiff’s
Misrepresentation marry is not a own moral,
of fact contract of physical or
uberrimae fidei mental infirmity
Misrepresentation of fact
◦ If the df can successfully prove that he/she had entered into the contract to marry
as a result of misrep.of fact by the pf, the court will dismiss the claim for damages.
◦ Wharton v Lewis (1824) 1 C&P 529
◦ The df was informed that the pf’s father would leave property upon his death, but
in fact the father had to pay off his creditors. Df also received information about
pf’s questionable life and had broken off the courtship, but he resumed. The jury
decided for the pf and awarded her £150 in damages.
A promise to marry is not a contract
uberrimae fidei
◦ U/F is a contract where a party has to disclose to the other all relevant facts and
information. E.g – insurance contract – need to disclose medical history etc.
◦ A contract to marry is not a contract U/F. Hence, if A already engaged to C, he need not
inform B at the time he promises to marry B,
◦ Beachey v Brown (1860) EB & E 796 – failure of a party to disclose all information
about him/her should not entitled the df to refuse to fulfil his agreement. However, if it
turns out that a woman is of unchaste conduct, the man is released from his contract.
◦ There may be extreme situations where the defence may be acceptable.
Moral, physical or mental infirmity
◦ Df has to prove that the other party has some actual moral, physical
or mental infirmity that renders him/her unfit for marriage.
◦ Must prove that infirmity was discovered after the engagement or
only begun to envelop after the making of the contract.
◦ Jefferson v Paskell [1916] 1 KB 57 (CA)
Own mental or physical infirmity?
◦ See - Hall v Wright (1859) EB & E 765
Refers to
damages for the
General damages abstract –
defamation,
REMEDIES / negligence, etc
CONSEQUENCE
OF A BREACH
OF PROMISE TO Damages for
MARRY specific item – can
be quantified in
Special damages monetary terms –
e.g medical
expenses, wedding
preparations, etc
Case Facts Judgment / Remedies
Berry v Da Costa (1866) LR
1 CP 311
Dennis v Senayah [1963]
MLJ 95
Rajeswary & Anor v
Balakrishnan % Anor
Doris Rodrigues v Bala
Krishnan [1982] 2 MLJ 77
