A promise to marry, or known as a engagement or a betrothal constitutes a contract to marry.

Thus the basic elements of a valid contract has to be fulfilled.

First of all there must be offer and acceptance. There must also be a consideration. As
explained by Mimi Kamariah Majid in Family Law in Malaysia, the agreement or the consent
to the offer by the promisor is sufficient to constitute consideration. Good consideration is
proved by the party doing some overt act requested by the other party. In Harvey v Johnston
1848, the plaintiff went to Ireland as requested by the defendant for the purpose of marriage.
When the defendant breached his promise to marry, Maule J held that the plaintiff’s act of
Ireland constituted a good consideration.

The next element is capacity. To be capable to enter the contract to marry both parties must
be single at the time the promise is made. If one or both of the parties is married, the contract
will be held to be illegal and unenforceable as being a contract of adultery contrary to public
policy. In the case of Spiers v Hunt 1908, the contract to marry the plaintiff after the death of
defendant’s wife was held to be illegal. In the words of Phillimore J, “…law should and does
encourage the closest relations between husband and wife and discourage every transaction
the tendency of which is to give the husband another woman to care for as well as or instead
of his wife, or a wife another man to care for as well as or instead of her husband.” The court
of Appeal agreed in Wilson v Carnley 1908.

Nonetheless there are exceptions to the general rule. The contract is recognized by the court
when the plaintiff did not know that the defendant is was married when the promise was
made. In the case of Shaw v Shaw 1954, because of the misrepresentation of the defendant as
a widower, the plaintiff went through a wedding ceremony with him which turned out to be
unlawful. Damages for breach of contract to marry was awarded by the court.

The contact is also valid when a decree nisi is pronounced dissolving or annulling a marriage,
and one of the parties enters into a contract to marry a third party even though the decree is
yet to become absolute. In the case of Fender v St John-Mildmay [1937], the court held that a
promise to marry during the period of decree nisi was valid and the enforcement of it was not
against public policy. Lord Atkin opined that the normal obligations and conditions of
marriage disappeared after decree nisi. In large number of cases no reconciliation would take
place too.

The third exception is when a man is permitted to have a plurality of wives by his personal
law. In the local case of Nafsiah v Abdul Majid 1969 the promise of marry made to a third
party by the Muslim man was recognized. The case of Dato' Abdullah Hishan Mohd Hashim
v Sharma Kumari Shukla 1999 followed where the promise to marry was recognized by the
court as the defendant had agreed to convert to Islam and was aware of the plaintiff's religion
which allowed him to marry more than one wife.

Moving on to the age of the contracting parties as the element of a valid promise to marriage.
Since the promise is a contract it is submitted that the Contract Act 1950 should apply.
Section 11 of the Act provides that a person is competent to enter into a contract if he has
attained the age of 18 years. However the local case of Rajeswary v Balakrishnan 1958 held
that minor can enter into contract to marry by referring to the Indian cases of Fernandes v
Gonsalves dan Khimji Kuverji v Lalji Karamsi. The decision is widely criticized. Mimi
Kamariah Majid is of the opinion that the true approach is to follow the minimum age of
marriage allowed in the Law Reform (Marriage and Divorce) Act 1976, that is 18 years for
boys and 16 years for girls.