BETROTHAL / PROMISE TO MARRY

 THE LAW IN MALAYSIA

A contract to marry or an agreement to marry refers to the contract where parties agree that they
will marry some time in the future.

No provision in LRA relating to betrothal in Malaysia and breaches of contract of marriage.

Follow common law i.e. based on contract

 REQUIREMENTS

A valid contract has its basic elements:-

1. OFFER

Where one party (promisor/offeror) makes a promise to marry (offer) the other party
(promisee/offeree)

2. ACCEPTANCE

The offeree accepts the promise to marry made by the offeror.

3. CONSIDERATION

Consideration in a contract of betrothal is the agreement/ consent of the other party

(promisee) to marry the party making the promise (promisor).

It may also be proved by the party doing some act requested by the other party such as
shifting over to live in another place.

Harvey v Johnston (1848) 6 CB 295

D had promised to marry P within a reasonable time after her arrival at Lisahoppin, Ireland if
she would go to Lisahoppin for the purpose of marrying D. she was single and resided at
Toronto, Canada. She went to Lisahoppin as requested but D failed to carry out his promise.
She sued him for breach of promise to marry. D alleged that there was no sufficient
consideration for his promise.

Held: there was perfectly good consideration.

4. CAPACITY

Both parties to the marriage must have the capacity to marry (at the time of their marriage).

Parties must be single at the time the promise was made

The religion of one or both parties to the contract to marry does not prevent them from
marrying

Parties above the age of 18

They should not be within the prohibited relationship.

If the parties are below 21 years old, written consent from parents/ guardian is required.
 PARTIES MUST BE SINGLE

If one or both parties to a contract to marry is or are already married, the contract will be held to
be illegal as being a contract contrary to public policy and unenforceable.

Spiers v Hunt [1908] 1 KB 720

D aged 70 and P aged 31. D promised to marry P upon death of his wife (D’s wife suffered a
heart ailment from which she was expected to die suddenly and early). P knew that D was a
married man. D then refused to marry P. P sued for breach of promise.

Held: that the promise was illegal due to the incapacity of D.

EXCEPTIONS

1. If P had no knowledge that D was married when the promise was made.

Shaw v Shaw & Anor [1954] 2 QB 429

Mr Shaw represented himself as widower and went through a marriage ceremony with P, a
widow in 1937. They lived together as husband and wife. The real Mrs Shaw was alive all the
while until she died in 1950. in 1952, P subsequently discovered that she was all along not
legally married to Mr Shaw. P sued the administrators of Mr Shaw’s estate for damages for
breach of contract to marry by the deceased.

Held: P was entitled to damages as the deceased breached the contract to marry.

“…the most important breach of all was at the moment of his death because when he died
she was not his widow, as she thought she was. She was in law a stranger. That is the breach
for which, in my judgment, damages can be recovered.” (Denning LJ)

2. When a decree nisi is pronounced dissolving or annulling a marriage.

Fender v St John-Mildway [1938] AC 1

D’s wife had already obtained a decree nisi of divorce on the ground of D’s adultery with P at
the time when D had promised to marry P upon a date after the decree had become
absolute. D broke off the engagement. Subsequently he married another woman and P sued
him for breach of promise.

Court awarded P damages for breach of promise to marry.

3. When a man is permitted to have plurality of wives by his personal law

Nafsiah v Abdul Majid [1969] 2 MLJ 175

P sued for damages for breach of contract to marry. The parties were Muslims. D’s Counsel
attempted to rely on the general rule of law which invalidates a promise to marry if the
woman knew that the man was already married at the time of the promise.

Held: that when D’s personal law allowed him to marry more than one wife, the promise
was valid. Damages was granted to P.

#no longer applicable with the enforcement of Article 121(1A) of the Federal Constitution.
 RELIGION OF PARTY/PARTIES PREVENT THEM FROM MARRYING

When the religion of one or both parties to the contract to marry prevent them from marrying.
In such situation the contract is not valid

Mary Joseph Arokiasamy v Sundram [1938] MLJ 4

A Hindu man had promised to marry a Christian girl. The girl was informed that the man’s wife
had died. The man, however breached his promise.

Held: there was no religious impediment against a Hindu man marrying a Christian girl. The
promise to marry was therefore valid and enforceable.

 AGE

LRA is silent on the matter as regards to permitted age to enter into the contract to marry.
However, since LRA provides for the minimum marriageable age, it is contended that these ages
be the minimum age requirements for contracts to marry.

Minimum marriageable age for girls is 16 years (after the solemnisation was authorised by the
Chief Minister) and for boys is 18 years (Sec 10 LRA)

Rajeswary v Balakrishnan [1958] 3 MC 178

P was a girl who had entered into a contract to marry when she was still a minor. D had
breached the contract and she sued him for damages.

Held: a minor could not enter into a valid contract

PARTIES NOT WITHIN PROHIBITED RELATIONSHIP

Section 11 LRA

Consanguinity (relationship by being descended from the same family) and affinity (relationship
by marriage);

Relationship of the half blood is as much an impediment as relationship of the full blood and it is
immaterial whether a person was born legitimate or illegitimate.

 WRITTEN CONSENT FROM PARENTS/ GUARDIAN IS REQUIRED (IF BELOW 21 YEARS)

Section 12 LRA

Consent of parents or guardian in writing:-

Father, mother (illegitimate/ if father dead), adopter father @ mother or person standing in loco
parents

Court can also give consent if person required refused to do so.

Application made in High Court in chambers

 BREACH OF BETROTHAL

The action for breach of betrothal will lie against the party in breach whether it is a man or a
woman.
 Where a specific date of the marriage is not fixed or known, the marriage should take place
within a reasonable time.

If a party demand for the marriage, the other party must have a reasonable excuse for not
wanting to go through with the marriage.

 DEFENCES

Misrepresentation of facts by P

D may prove that he or she had entered into the contract to marry as a result of a material
misrepresentation of facts by P.

Wharton v Lewis (1824) 1 C & P 529

Facts: Before the engagement, P’s brother had informed D that her father would leave property
to her upon his death. As it turned out, the father had a short time before, paid off his creditors.
(P’s brother and father represented the information as false)

The other point was in relation to P’s past when she was at Oxford. D had broken off the
courtship when he received information concerning the questionable life P had been leading in
Oxford. (it was discovered that P had in fact been leading a questionable life)

Held: misrepresentation did not occur as he was not induced by the promise. Defense failed. (P
was awarded damages by the Court)

A Contract to marry is not a contract of uberrimae fidei.

A contract uberrimae fidei is one where a party has to disclose to the other all relevant facts and
information.

Beachey v Brown (1860) EB & E 796; [1843] ER Rep 506

D had raised the defence that P had agreed to marry another when she entered into an
engagement with D. had he known this, he would not have agreed to marry P.

Held: not entitle D to refuse to fulfill his engagement. “where it turns out that a woman is of
unchaste conduct, which goes to the very root of the contract of marriage, there, from the excess
and necessity of the case, the man is released from his contract” (Cockburn CJ)

P’s own moral, physical or mental infirmity which renders P unfit for the marriage

It must be proved that the infirmity was discovered either after the engagement contract had
been made or that the infirmity had only begun to develop after the making of the contract.

Jefferson v Paskell [1916] 1 KB 57

Facts: P contracted a disease of the chest soon after her engagement. She thought it was a mere
chill, but the doctor diagnosed tuberculosis. In any case, she was not ready and was unfit for
marriage on the day fixed for the wedding. She underwent treatment but D refused to marry her
even though she was given a clean bill of health less than 6 months thereafter. However, it
turned out that P’s illness was not tuberculosis. D was sued for breach.

Court granted damages to P as D failed to prove that he honestly and reasonably believed P to
be unfit for marriage.

D’s own mental or physical infirmity is not a defence

 Hall v Wright (1859) EB & E 765; [1843-60] All ER Rep 734

D failed in his defense of his own physical infirmity in an action of breach of promise to marry
against him. D had pleaded his own supervening ill-health, that is a serious occasional bleeding
from the lungs from which he was still suffering and alleged that he had been warned that the
excitement of marriage would endanger his life.

Held: D’s own mental or physical infirmity is not a defence in an action of breach of promise to
marry.

 CONSEQUENCES

Parties can claim for :-

1. Damages

There are 2 kinds of damages

General damages: damages for the abstract. In assessing the proper amount of damages, the
judges are not limited to the mere pecuniary loss which P has sustained but may take into
consideration the injured feelings and wounded pride of P.

Special damages: damages for specific items and which may be quantified in monetary
terms, such as damages for medical expenses and wedding preparations

DENNIS V SENNYAH [1963] MLJ 95

Facts: P alleged that as the result of the breach, she had endure humiliation and mental
anguish. She has incurred expenses to the amount of RM870.10 and wished to claim both
general and special damages.

The learned judge found no aggravating circumstances such as an allegation of seduction.

There was naturally mental anguish and humiliation. On P’s future prospects for marriage,
he found her to be young and her prospects not marred as such. He also considered her
father’s standing in the community. Therefore, General damages amounting of RM 1,500
was awarded. Special damages for food items, saris and costs of wedding preparations
which totaled RM 620.10 was also approved.

2. RETURN OF GIFTS

Only the wrongful party/ D should return the gifts and ring to P.

If the contract to marry is dissolved by mutual consent, both parties must return the
engagement ring and gifts.

COHEN V STELLAR [1926] 1 KB 536

Facts: a man who had been awarded damages for breach of promise claimed the return of
the ring.

Held: “if a woman who has received a ring refuses to fulfill the conditions of the gifts she
must return it. So, on the other hand, I think that if the man has, without a recognised legal
justification, refused to carry out this promise of marriage, he cannot demand the return of
the engagement ring…if the engagement to marry dissolved by mutual consent, then in the
absence of agreement to the contrary, the engagement ring and like gifts must, I think, be
returned by each party to the other….” (McCardie J)