THE CONCEPT OF BREACH OF PROMISE TO MARRY
THE CONCEPT OF BREACH OF PROMISE
TO MARRY[1]
INTRODUCTION
There
can be no action for breach of promise unless a contract to marry has been
made. There are no formal requirements regarding the contract. It need not to
be evidenced by writing and the law prescribes no particular form of words. A
promise by one person to marry another is not binding unless and until that
other also promises to marry the first person. Mutual promises to marry may be
implied from the conduct of the parties. A declaration of intention to marry
another made to a third person who will not constitute a promise unless
communicated to the other person on the authority of the person making the
declaration. While it is not necessary that the mutual promises should be
concurrent, both should be made within a reasonable time of one another. An
action for breach of promise to marry may be taken by a man as well as a woman.
In modern times there have been instances of successful action by men.[2]
A party who fails
to fulfill the promise breaches the promise to marry. A promise to marry is
breached if a party repudiates his obligations or does an act that hinders the
other party from fulfilling his obligations under the contract (such as getting
married to a third party). In addition, if a date is fixed, a party may fail to
attend the marriage ceremony.[3]
MARRIAGE
This
has been universally defined as the legal relationship between a husband and
wife, a union between a man and a woman[4]
and of course an interpersonal relationship with governmental, social or
religious recognition, usually intimate and sexual and often created as a
contract.[5]
It
has also been defined as the voluntary union for life of one man and one woman,
to the exclusion of all others[6]
BREACH OF
CONTRACT TO MARRY
Before
the breach is constituted, two elements must be proved.
(1)
The Defendant made a promise to the
Plaintiff under the Marriage Act.
(2)
That one party to the agreement has
willfully and persistently refused to honour his/her obligation.
Until
when the above mentioned elements have been proved to the satisfaction of the
Court, before the injured party can actually sue and claim for damages. It
should be said straightaway that proof of the elements of breach is not an automatic
ticket to claim for damages in the court of law. No damages may be recovered
unless Section 197 [7]
has been complied with and the provision states thus:
No
Plaintiff in any action for breach of promise of marriage can recover a verdict
unless his or her testimony is corroborated by some other material evidence in
support of such promise, and the fact that the defendant did not answer letters
affirming that he had promised to marry the Plaintiff is not such
corroboration.
It
is trite law, that where the evidence supports the promise, that is not enough
to prove breach. Evidence of corroboration needs not to go the length of
establishing a contract. It should be noted that in Nigeria, cases of breach of
promise to marry rarely get to court.
It
should be noted that the corroboration of evidence must attain the standard of
proof in civil case - proof on a balance of probability, otherwise, several explanations
by the defendant might enable him escape liability.
NATURE OF
BREACH
This
may take two forms:
A.
NON-PERFORMANCE:
This in modern times is known as jilt. This may be a situation where the
marriage date has been fixed but the defendant willfully refuses to turn up for
the marriage and this constitute a breach or on the other hand, there is no
specific date fixed, the law implies that the promise is for one to marry
within a reasonable time or at the request of one party (most occasions, at the
request of the groom),
In
both instances as mentioned above, the basic charge is failure of the defendant
to perform his obligation as and at when due. An instance of non-performance
was portrayed in the case of MARTINS V
ADENUGBA. [8]
The parties where engaged. In September 1942 the defendant informed the plaintiff’s
parents that he had completed preliminary arrangements for the marriage to take
place on 17th September. On the appointed day, the defendant went
into the registry alone, leaving the Plaintiff outside. He came out after a
while and informed the Plaintiff and her relations that they had been married. After
this incident, the parties proceeded on the same day to St. Peter’s Church,
Lagos for the church blessing. The Plaintiff was induced to believe that she
was married to the defendant. She lived with the defendant from September 1942
to December 1945, when she left him on account of his cruel conduct. On enquiry
then, she discovered that no valid marriage had actually taken place. She instituted
an action for breach of promise. Brook acting CJ held that this was a proper
cause of action and that she was entitled to recover damages. The court pointed
out that alternatively, she could have sued on deceit.
However,
when a promise is made subject to a condition precedent then there is no
breach. For instance, in AIYEDE VS
NORMAN WILLIAMS [9]
the defendant based the promise on the condition that his father would give his
consent to the marriage (after which the father didn’t give). The defendant
married another woman and was sued. COKER J (as he then was) opined that:
Where
the promise is only to be carried into effect on or after the happening of a
certain contingency that contingency must happen before the promise becomes
actionable. The promise is however entitled to sue as on the breach of an
executor contract where the promissory does any act whereby he would be
incapable of performing the contract if and when the agreed contingency
arrives.
In
that case, necessary consent was not obtained and Plaintiff’s case was
dismissed. Similarly, a promise of marriage as soon as business is settled and
is viewed as conditional promise, thus, it is not actionable. In COLE V COTTINGHAM, [10] where
it was held that a promise made to a woman to marry her as quickly as her
business is settled is a conditional breach.
B.
ANTICIPATORY
BREACH: Under this form, there are 2 issues, it may
either be the repudiation of obligation- where a party announces his intention,
not to perform, before the contractual fixed date of performance, OR by such
conduct on his part puts it to perform his obligation. Herein, he marries
another person in lieu of the other party so contracted. This is an
anticipatory breach.
In
USO V IKETUNBOSIN [11]
IRWIN J held that the defendant, who actually promised to marry the defendant,
married another person therefore, the Plaintiff is entitled to pay damages.
JUSTIFICATION
FOR THE BREACH & DEFENCE
A
promise by a married man or woman to marry another person is actionable where
the Plaintiff had no knowledge of the defendant’s married state. A promise by a
married man or woman to another person is actionable where the plaintiff had no
knowledge of the defendant’s married state. Where, however, the other person is
aware of the defendant’s position, a promise by the defendant to marry that
person after the death of his or her spouse will be unenforceable on the ground
of public policy.
On
the other hand a promise to marry made by a party to a void marriage will be
enforceable. Similarly, a promise by the defendant to marry the other person
after he or she has obtained an annulment of a voidable marriage will be
unenforceable. (A marriage that is void may be so treated by any person and
does not require decree of annulment). A promise to marry conditional upon
obtaining a divorce outside the jurisdiction would presumably be unenforceable
on the ground of public policy. [12]
GENERAL
DEFENCES
A
Defendant in an action for breach of promise to marry may plead some
justification for the breach and therefore is entitled to all defences
available to a defendant in breach of ordinary contract [13]
thus, fraud, duress, misrepresentation may provide a good defence for a
breach of promise to marry. In other words, a defendant is not bound by his
promise where he establishes a false representation or fraudulent concealment
in material particulars of the pecuniary circumstances of previous life of the
Plaintiff.
In
WHARTON V LEWIS [14]
the defendant in an action for breach of promise successfully pleaded that he
had made his promise under fraudulent and false representations about the
Plaintiff’s former situation and the circumstances of her family. Abbott, CJ
found that the Plaintiff’s representation that her father would leave property
for her on his death whereas in fact the father had recently compounded with
his creditors, induced the defendant to make his promise. It could, therefore,
be pleaded in defence.
SPECIAL
DEFENCES
A
defendant may also raise certain special defences that may be personal to the
Plaintiff. It the “may include some actual moral, physical or mental infirmity
in the Plaintiff which makes the Plaintiff unfit for marriage.
This
defence presupposes the existence of certain factors. That the Plaintiff is
suffering from some moral, physical or mental infirmity and such conditions may
include where the man is of bad character; when the woman is loose and immodest
and pregnant by a man other than the defendant, where the woman has had an
illegitimate child some years earlier;
-
Where the man is of violent and
ungovernable temper and threatens to ill-treat the defendant; where one party
is suffering from tuberculosis. While these illustrations relate to the person
of the Plaintiff, it is no defence to plead the supposed status in life of the
plaintiff, for example, that he was regarded as wealthy when in fact he is a
poor man.
-
The infirmity (which must not be of
temporal nature) must be able to render the party unfit for marriage. Thus
wherein the infirmity makes plaintiff unfit for marriage on a particular date,
but recovers within a reasonable time, for the ceremony, the court may not
regard such an infirmity as defence.
-
The defence also avails the defendant
where the defendant discovers the infirmity after contracting the marriage.
This is subjected to test. A test of the knowledge of the defendant which must
be placed on a balance of probability.[15]
-
The infirmity must be proved, where
suspicion is not enough to avail the defendant. [16]
DAMAGES
Just like commercial contracts,
the quantum of damages in action for breach of promise of marriage is subject
to rules of remoteness; [17]
the successful plaintiff has the tenacity of suing for damages flowing from the
breach or within the contemplations of the parties as at the time of the
promise. [18]
Below
are some of the forms of damages.
(1)
General
Damages: The plaintiff may recover the loss of the marriage.
The compensation may relate to loss of consortium [19] she
may claim for the loss of status of married woman by which she would have been
entitled to support and maintenance by her husband. [20]
(2)
Injured feelings and wounded pride. It
was held in BERRY V DA COSTA [21]
that:
…in an action for a breach of
promise of marriage, the jury are not limited to mere pecuniary loss which the
plaintiff has sustained, but may take into their consideration the injured
feelings and wounded pride…..
It
should be echoed that among the factors that may increase the damage awarded
are the seduction of the plaintiff if a woman by the defendant on the basis of
a promise to marry her, harsh and unfair treatment and lowering of her
prospects of marrying another man. [22]
(3)
Special damages affecting property:
Damages may be awarded in respect of money spent or financial loss sustained by
the Plaintiff as a direct result of the defendant’s breach of his promise.
These may include money spent on durable article intended for use on the
wedding day or in the matrimonial home.
It
should be noted that the action of the learned judge in this respect may well
be open to criticism, for it involves the mixing up of two different legal
systems. There is no legal justification for refusing the full remedy provided
by English law merely because there is no comparable remedy in customary law. It
was because the transaction was one unknown to customary law that English law
was applied to the case.
(4)
Recovery of engagement ring and presents:
The defendant is entitled to the certain valuables brought in anticipation of
marriage. This includes diamond rings and other valuables. Here, as in the case
of the engagement ring, the party in breach thereby forfeits any claim to such
gifts. While the party in breach is obliged to return to the innocent party
presents made by him in contemplation of the marriage, the innocent party on
the other hand, is entitled to keep such gifts.
However,
where the marriage does not take place, owing to the death or disability as (recognized
by law of the party making such gifts), the reasonable inference is that the
gift should be returned to the donor. But if the marriage takes place, it has
been stated obiter that the engagement ring or gifts will, in the absence of
agreement to the contrary, become the absolute property of the recipient and
need not be returned. [23]
[1] O.
O. DARA ESQ, LL.B(HONS), B.L, Solicitor and Advocate, R. A Adekola & CO.
Veterinary Bus stop, Mokola Ibadan, Oyo state. 2014.
[3] Ibid.
[5]
Ibid
[6]
The definition of Marriage as postulated by Lord Penzance in Hyde V Hyde and
Woodmansee (L.R) 1 P & D. 130. Although this decision has received diverse
of criticism which includes that the statement is an obiter dictum and that it
was a mere defence of marriage and not a definition of it.
[7] Evidence
Act, 2011.
[8] (1946)
18 NLR 63.
[9] (1960)
ALL 253
[10] (1837)
8 CAR, P. 75, 173 ER 406
[11] (1975)
WRNLR, 187.
[12] But
in England, in 1937, the House of Lords held that this did not apply in a case
where the promise was made after a decree nisi had been pronounced. Fender
v. St. John Mildmay [1938 A. C. 1]. The fact that the defendant is already
engaged to another person will not relieve him of liability.
[13] E.
I. Nwogugu; The Family Law in Nigeria 2011 edition
[14] (1824) I C
& P 529, 171 ER 1303
[15]
E. I. Nwogugu (Ibid)
[16] The
four basic factors of special defence of infirmity.
JEFFERSON V
PASKELL, (1916)1 KB, 57, 70
[17] In English law, remoteness is a set of rules in both tort and contract, which
limits the amount of compensatory damages for a wrong.
18.In negligence,
the test of causation not only requires that the defendant was the cause in
fact, but also requires that the loss or damage sustained by the claimant was
not too remote
[19] Consortium:
Conjugal fellowship of husband and wife, and the right of each to the company,
society, co-operation, affection, and of the other in every conjugal relation.
Blacks” Law Dictionary (8th Edition)
[20] UGBONNA
V MORAH (1940) 15 NLR 78
[21] (1866)
LR 1 CP 331, 333
[22] USO
V IKETUNBOSIN (Supra)
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