Promise to Marry (Family law Notes)

WHAT IS A PROMISE TO MARRY?

A promise to marry is a mutual promise made by parties intending to get married and thereafter act in a way portraying their intentions of getting married.

A promise to marry need not be written or express but can be implied from the conduct of the man and wife intending to take on marriage.

In common law, a promise to marry is considered to be a contract to marry which involves a man and a woman making promises to each other that they honour by getting married. A promise to marry can be made by a man to a woman or a woman to a man.

In this article, I have discussed the elements of a promise to marry, and situations, when a promise to marry, will be enforced or not. The defences and remedies available in case of breach of a promise to marry.

ELEMENTS OF A PROMISE TO MARRY

Since a promise to marry is treated as a contract, it must have elements of offer, acceptance, and consideration.

Ø Mutual Promise by both parties. (Offer & Acceptance)

The promise to marry must be made by both parties and acceptance should occur.

Ø Consideration

This can involve goods or money given in consideration for the marriage.

In Moate V Moate [l948] 2 All E.R. 486, the husband and wife had fallen out and the man tried to recover property he had given to the wife during the engagement period. He claimed that he had solely paid for the property despite being in the name of his wife.

Court held that gifts that were given by a man to his fiancée could not be recovered since he intended them to be gifts for marriage which had actually occurred.

Ø Free consent by both parties.

Consent should not be obtained by way of violence, threats or force. Where consent is present but obtained in the ways mentioned it is disqualified.

Ø The parties must act in a way that portrays their intentions to get married.

The intending parties should take themselves as parties intending to get married.

In Larok V Obwoya, a man made a promise to a woman to marry her which promise he later never honoured. The court granted the lady damages because she had suffered emotional hurt and the issue had reduced her chances of getting married.

FACTORS INVALIDATING A PROMISE TO MARRY

For a promise to marry to stand, it must not be induced by;

· Fraud

· Misrepresentation

· Duress

· Should not be against Public Policy

Ø Misrepresentation

In Scott v Sebright (1886) LR 12 PD 21, woman W sought a decree of nullity on grounds of duress. A man M tricked a woman W into taking over his debts. He then refused to help her unless she married him. The woman was granted a decree of nullity was granted on grounds that she did not give genuine consent as required by law.

Ø Should not be against Public Policy.

According to Public Policy, a promise to marry will be unenforceable if the claimant is aware that the defendant;

· Is having an ongoing marriage,

· A promise to marry after the death of the party’s partner

· A promise to marry on the attainment of divorce.

Based on the above grounds, the promise will not be enforceable on grounds of public policy.

This was illustrated in Shaw V Shaw [1954] 2 ALL ER 638, where a man and woman cohabited for a while before the death of the man. Unknown to the woman, the man was already married to another woman.

At the death of the man, the woman sued the estate of the man on breach of promise to marry since the man’s wife had died 2 years earlier before he himself died and it was in that period that he was supposed to fulfil his promise to marry her.

Court held that there was a breach of promise to marry by the man and granted her damages.

Recomended reading: Simplified Family Law Notes LLB Uganda

DEFENSES AVAILABLE UPON BREACH OF A PROMISE TO MARRY

Upon a breach of a contract to marry or a promise to marry, a party can have various defences to justify their position for breach.

Defenses available for a breach of a promise to marry include;

Ø Bad character

i.e. the person has poor table manners,

Ø Frustration

Where the conditions prevailing render the parties unable to honour their promise.

Ø Mental Incapacity

One party can plead that they failed to honour their promise since the partner is insane.

In Durham V Durham, the Earl of Durham sought to nullify his marriage on grounds that his wife lacked the mental capacity to get married at the time they held their marriage.

The court held that a contract of marriage did not require a high degree of intelligence to understand.

The marriage was considered valid and the wife understood the marriage contract at the time though her condition later deteriorated.

Ø Misrepresentation

Portraying wrongful facts about oneself to induce the other to enter into the promise to marry.

This was witnessed in Re C & D (1979) 35 FLR 340, where A was born a hermaphrodite but was brought up as a boy. He later underwent surgery to remove feminine organs. On marrying woman B, she later discovered this fact and sought to nullify their marriage.

Court held that it was sufficient grounds for B to nullify such marriage since she intended to marry a male.

Ø Mutual Release

Where the parties agree to get released from their obligation under the promise to marry the same shall be considered to have ceased.

Ø Impotence

If the man has erectile malfunctions, this will render the promise to marry invalid since the basis for marriage i.e. the aspect of legitimizing sex to have children will have died off.

Ø Duress

Use of violence, threats to force someone into doing things against their will or free consent.

In Hussein v Hussein 2 All ER 344, a woman W petitioned for a decree of nullity on grounds that shortly before her marriage in England, her Egyptian husband-to-be had repeatedly threatened to kill her if she did not agree.

The judge granted the decree sought

REMEDIES AVAILABLE IN CASE OF BREACH OF A PROMISE TO MARRY

A promise to marry is considered a contract for marriage and is actionable upon breach. When a party making a promise to marry breaches that promise they have various remedies available.

The aggrieved party can successfully claim remedies such as;

Ø Damages i.e. exemplary, general and special damages.

In Larok V Obwoya [1970] HCB 41, a man and woman entered into a promise to marry each other which the man breached.

The court awarded damages to the woman since she had suffered emotional hurt and it had reduced her chances of getting married.

Ø Apply for compensation of the costs incurred.

As was the case in Moate V Moate [1948], where the applicant sought to repossess the property that he had placed in the name of his wife during engagement before they got married.

However, the court held that the property he had given the wife was considered gifts in consideration for the marriage which in fact occurred.

Ø Payment of the suit costs.

Ø Reconciliation of the parties.

CONCLUSION

A promise to marry is considered to be a contract to marry upon the fulfilment of all the required conditions such as Offer, Consideration, and Acceptance. A breach will entitle the aggrieved party to damages. Promises to marry are common under betrothal agreements.

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