A PRESENTATION ON PROMISES AND BREACH OF

PROMISES TO MARRY BY: AHUMUZA IVAN.

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 a man and
woman intending to take on marriage.

At common law, a promise to marry can be considered to be a contract to marry which involves a man
and a woman making promises to each other which honor by getting married. A promise to marry can
be made by a man to a woman or a woman to a man.

A contract to marry may have similarities to a commercial one, but not entirely. When it comes to a
promise to marry, or in the view of a layperson, referred to as an engagement or betrothal is, in fact, a
legal agreement between two parties where they promise that they will marry each other at some time
in the future. As a promise to marry is not a mere word of honor, it renders to having legal repercussions
once breached.

There are four pertinent questions that revolve around the concept of promise to marry;

Is there a valid agreement to marry? If yes, has there been a breach? If yes, what is the defendant’s
defence? If none, what are the remedies to be awarded to the Plaintiff? If there is no valid agreement
within the promise, the contract is void and no further proceedings shall be conducted. If there is, then
if there is a valid defence by the defendant, then the case stops there.

For there to be a valid agreement to marry, it must satisfy the basic elements of offer, acceptance,
consideration and capacity.

Mutual promise by both parties (offer and acceptance)

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

In the case of Woodman v Woodman, the plaintiff sued to recover damages for breach of promise to
marry, she used three letter evidence, i.e., one by herself, the second by her brother in law asking the
defendant to make his position clear and third by the pastor where the plaintiff prayed. The defendant
did not answer any of those letters. The plaintiff averred that silence amounted to consent, she also
relied on the fact that she picked a ring that belonged to the defendant but he had not asked for it. The
court did not find it satisfactory to amount to a promise and silence did not amount to acceptance. All
circumstances must be looked into before judging a case.

Consideration.

Consent is sufficient consideration.

Consideration may also be proved by doing some act requested by the other party and any transactions
in goods and money to be given in consideration for the marriage.

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In the case of Harvey v Johnson, the defendant promised to marry the plaintiff within a reasonable time
after her arrival at Ireland, if she would go to Ireland fir the purpose of marrying the defendant. She
went to Ireland from Canada as requested but the defendant did not carry out his promise. She sued for
breach of promise to marry. The defendant argued that there was sufficient consideration for his
promise, and court held that there was perfectly good consideration.

Capacity.

Both parties must be single, in that none of them should be from an existing marriage relationship.

In the case of Spiers v Hunt, the defendant, who was to the knowledge of a plaintiff a married man,
promised to marry the plaintiff on the death of his wife. He did so with the intention, known to the

Plaintiff of inducing her to commit adultery with him, and she did so after the promise and before the
death of the defendant’s wife. The defendant refused to marry the plaintiff and the plaintiff sued for
beach of promise. Court held that the agreement is not valid because it failed to comply with the
requirement of both parties being single.

And in the case of Wilson v Carnley, the judge agrees with the case of Spiers v Hunt where court added
their view that where one of the agreements entered by them will be contradicting with the public
policies as it results in the husband neglecting right etiquettes of responsibilities to his family hence the
agreements are unenforceable.

However, there are three exceptions to this rule as shown below;

If the plaintiff does not know the defendant has already married.

In the case of Shaw v shaw and anor, Mr. Shaw represented himself to be a widower and went through
a marriage ceremony with the plaintiff, 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, the plaintiff subsequently
discovered that she was all along not legally married to Mr. Shaw. She sued Mr. Shaw’s estate for
damages for breach of contract to marry the deceased (Mr. Shaw). And court held that the damage can
be recovered, the case of which would be different had the plaintiff known that Mr. Shaw was a married
man. Damages of 1000 pounds was awarded in this case.

Also in the case of Joseph Arokiasamy v Sundram, 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 and court
held that there was no religious obstruct against a Hindu man marrying a Christian woman. The promise
to marry was therefore valid and enforceable.

If the promise to marry was made during the period of decree nisi.

In the case of Fender v John-Mildway, the defendant had promised to marry the plaintiff at the time his
wife had obtained a decree nisi of divorce. The defendant broke off the engagement and subsequently
married another woman. The plaintiff sued him for breach of promise to marry. The court held that the
status of marriage exists until decree absolute. However, when the petitioner had advanced so far as
decree nisi, no reconciliation could take place. So, the plaintiff obtained damages for breach of promise
to marry.

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

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In the case of Nafsiah v Abdul Majid, the plaintiff brought an action for damages for breach of a promise
to marriage on the ground that she had been seduced by the defendant and she had given birth to a a
child. The high court awarded damages t the plaintiff as his personal law allowed him to marry more
than one wife.

When the religion of one or both parties to the contract prevent him from marrying is not valid.

In the case of Mary Joseph Arokiasamy v Sundram, a Hindu man promised to marry a Christian girl, but
then he breached the promise. The high court found that there was no religious impediment against a
Hindu man marrying a Christian girl. Thus the promise was valid and enforceable.

The second element under capacity is the age of the parties.

Article 31 of the Uganda constitution, 1995 as amended, parties must be 21 years and above and that is
the minimum age of marriage under statutory law. However, under the marriage act, S.10 provides that
the minimum marriageable age for a girl is 16 years and for a boy is 18 years.

It has however been subsequently decided and affirmed by courts in Uganda upholding the provision in
the constitution that the minimum age for marriage is 21 years.

In the case of Fernandez v Gonzales, the court acknowledged that in India, a contract to marry was
normally entered into between minors or between a minor and an adult. The court held that it could not
say that the Indian government had no intention to provide remedies for breach of contract and awards
damages for minors.

The third element under capacity is the plaintiff’s own moral, physical or mental infirmity which
renders the plaintiff unfit for the marriage.

In the case of Jefferson v paskell, the plaintiff contracted a disease of the chest which the doctor
diagnosed tuberculosis. The defendant refused to marry her even when she was given a clean bill of
health less than 6 months thereafter as it turned out, the plaintiff’s illness was not tuberculosis. The
defendant was sued for breach. The court awarded damages to the plaintiff. The burden of proof was on
the plaintiff to show that she would be fit within a reasonable time or that she actually became fit for
breach. There was no burden upon the man. The plaintiff did not admit that she had a permanent or
even a prolonged.

In the case of Hall v Wright, the defendant had pleaded his own supervening ill-health that is a serious
disease occasioning 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. The court held that plea of own
physical infirmity was no answer to the action.

Defences for breach of promise to marry.

When the breach of promise to marry has established, the parties in default is liable for the damages
occurred as the result of breach. However there are several defences that can be used by the parties in
default in order to escape liability.

There are 3 possible defences that can be used in order to escape liability from the breach of promise to
marry, which are;

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Misrepresentation of Fact

In order to establish this defence, the parties in default must prove that he or she has entered into the
contract to marry as a result of a material misrepresentation of fact by the other parties.

In the case of Wharton v Lewis, there was allegation of misrepresentation. The defendant raised two
issues of misrepresentation. The first, the defendant argued that the plaintiff’s brother before the
engagement had informed the defendant that his father would leave property to plaintiff upon the
father’s death. As it turned out, the father had already used the money (property) to clear all his debt
with the creditors. Secondly, the defendant raised the issue that the plaintiff lived a questionable life in
Oxford which subsequently was discovered to be true. The court then left it to the jury to decide
whether or not the defendant was induced to make the promise or to continue the relationship by false
representations or willful suppression of the truth. The jury decided for the plaintiff and awarded her
£150 in damages.

A contract to marry is not a contract uberrimae fidei.

Contract Uberrimae Fidei is one where a party has to disclose to the other all relevant facts and
information. For example, an insurance contract is an Uberrimae Fidea contract. Here, before a person
entered into a life insurance contract, the insurance company would want to know one’s medical
history, the illness family members have contracted, the cause of death of family members and whether
one’s occupation is particularly susceptible to certain hazards.

In the case of a contract to marry, the contract is not a contract Uberrimae Fidei and as such the
defendant may put forward this as a defence. As such, if A is already engaged to C, he need not inform B
at the time he promises to marry B.

In the case of Beachey v Brown, the defendant raised the defence that the plaintiff had agreed to marry
to another person at the time the contract was made. The court then rejected his defence and gave
judgment to the plaintiff. Here, Cockburn CJ whilst agreeing that there are many things that the parties
need know about his or her partner, he felt that the discovery of the defendant should not entitle the
defendant to refuse to fulfill his engagement. His Lordship, however, went on; “…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.”

Here, it implies that there may be extreme situations where the defence may be acceptable.

Remedies for a promise to marry.

Both special and general damages can be awarded for a breach of promise to marry.

General damages are damages for the abstract, such as negligence, defamation, breach of promise to
marry. And special damages are damages for specific items, and which may be qualified in monetary
terms, e.g. Damages for medical expenses and wedding preparations.

In the case of Dennis v Sayanah, the plaintiff alleged that due to the breach, she had to endure
humiliation and mental anguish, she wished to claim both general and special damages. Both general
and special damages were awarded. The learned judge found no aggravating circumstances and there

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was naturally mental anguish and humiliation. The damages were not merely to repay the plaintiff for
temporary loss but to push the defendant in an exemplary manner.

In the case of Larok v Obwoya, the lady who was the respondent and the appellant were friends when
the lady was a pupil at college and she became pregnant and as a result was expelled from the college.
The man then wrote to the lady promising to marry her by the end of April. This was in 1968. In October,
he again wrote to the lady indicating that he was no longer keen to marry her, the lady then went to
court and sued for breach of promise to marry and awarded the lady 2000 as damages. The court based
its computation on two grounds that the chances of getting married had been impaired and secondly
the injury posed to her feelings. The man appealed but his appeal was dismissed and the sum of 2000
shillings was to be paid.

In the case of Rajeswary and anor v Balakrishnan and ors, the court considered in aggravation of
general damages the fact that the defendant’s behavior had been unfeeling and contemptible and that
he had written a letter to his prospective father-in-law. The court took into consideration the
defendant’s financial position and damages was awarded.

The other remedy apart from damages is return of gifts.

Gifts and rings which are usually exchanged or given to celebrate the engagements may be resorted to
in the absence of any express agreement thereto.

In the case of Cohen v Sellar, a man who had been awarded damages for breach of promise claimed the
return of the ring. The court held that if a woman who has received a ring refuses to fulfill the conditions
of the gift, then she must return it. However if a man refuses to carry out his promise of marriage then
he cannot demand return of the gift.

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