PROMISE TO MARRY

• An agreement to marry or betrothal is an agreement which is governed by the

contract law.
• The discussion will cover:
• (i) The validity of the contract or agreement
• (ii) whether there is a breach of the contract or agreement?
• (iii) Any defences available?
• (iv) what are the remedies available?
 REQUIREMENTS FOR A VALID AGREEMENT
TO MARRY

• (1) Offer
• Under section 2(a) of the Contracts Act 1950 defined an offer as when a
person signifies to another the willingness to do or to abstain from doing
anything, with a view to obtaining the assent of that other to the act or
abstinence, he is said to make a proposal.
• This offer is verbalized through a proposal.
• (2) Acceptance
• Section 2 (b) states that when a person to whom the proposal is made
signifies his assent thereto, the proposal is said ro be accepted, and becomes
a promise.
• When the proposal from the man to the woman is accepted, there is a
promise to marry.
• (3) Consideration
• Generally an individual’s promise made is considered as adequate consideration for the promise of the
other person.
• Normally the proposal will be accompanied with a gift of a ring.
• Nevertheless, sometimes consideration can take the form of an overt action on the part of the promise.
• See the cases of: Harvey v Johnston (1848)6 CB 295
• R.S. Thamalachimi v Sundararaju a/l Mattayah
• [2010] MLJU 1339
• (4) Capacity
• (i) Age
• Section 11 of the Contracts Act 1950 requires a person to be 18 and above to enter into a valid agreement.
• Section 10 of the LRA allows a girl who is 16 years of age to marry.
• Nevertheless, under the LRA 1976, a female who is 16 years of age can enter into a valid marriage if the
soleminisation of the said marriage was authorized by the Chief Minister under section 21(2).
• See the case of : Rajeswary v Balakrishnan [1958] 3 MC 178
•
• (ii) Marital Status
• Both parties must have the capacity to marry at the time of the marriage.
• For the non-muslim, it means that the parties must be single, since the marriage is a
monogamous marriage.
• For the muslims, the requirement of being single will be applicable to the female, since the
male is allowed to have up to 4 wives at any one time. It is a polygamous marriage.
• See the cases of :Spiers v Hunt [1980] 1 KB 720
• Wilson v Carnley [1908] 1 KB 729
• There are 3 exceptions to this general rule :
• (a) if the plaintiff in a breach of promise suit satisfies the court that she did not know the
defendant to be a married person at the date of the engagement contract, she will be
allowed to recover damages, since from her standpoint, the contract is not illegal.
• See the case of Shaw v Shaw [1954] 2 QB 429
• (b) if after a decree nisi has been made dissolving or annulling a marriage, one of the
spouses contracts to marry a third party, the contract is valid.
• See the case of Fender v St John Mildmay [1938] AC 1
• ( c) If the male party is permitted a plurality of wives by his personal law, the contract to marry is valid.
• See the cases of : Mary Arokiasamy v Sundram [1938] MLJ 4
• Nafsiah v Abdul Majid [1969] 2 MLJ 19
• Dato’ Abdullah Hisham bin Hj Mohd Hashim v
• Sharma Kumari Shukla [1999] MLJU 81

• (iii) No religious bar to marriage on either side.

• See the case of : Mary Arokiasamy v Sundram [1938] MLJ 4
 BREACH OF A PROMISE TO MARRY

• If the agreement to marry is valid, failure by one party to solemnise the marriage will render it as a breach of the said promise.
• The innocent party or the plaintiff may then bring an action for breach of promise to marry against the other party or the
defendant.
• See the case of Frost v Knight (1872) L.R. 7 Exch.111 where the D promised to marry P upon D`s father death. While his
father was still alive, D had announced his intention of not fulfilling his promise. P, without waiting for the father`s death,
commenced an action for breach of promise
• The difficulties with this case is D merely declared his intention to breach and his intention has not been put into effect i.e.
refused to marry after his father`s death.
• Held : P can take action immediately without waiting for the father`s death. This case fell under anticipatory breach, where if
one is anticipated to breach a promise, action can be taken immediately against him although he had not breached his promise
yet
 DEFENCES

• Nevertheless before the plaintiff is entitle to the remedy, the court will consider the defences
available for the defendant.
• (i) Misrepresentation of fact
• Where the D may argue that the other party had induced he/she to enter into the agreement
to marry by presenting false facts of him/herself.
• In the case of Wharton v Lewis (1824) 1 CP 529. Where the P`s father and brother presented
to the D that the P did not lead any questionable life in Oxford and she will be inheriting her
father`s property. Nevertheless that was not the truth, there was misrepresentation of facts.
• (ii) Not a uberrimae fidei contract
• the party does not have any duty to disclose the facts of their past to the other party.
• In the Case : Beachey v Brown (1860)EB & E 796. The D claimed that the P had
agreed to marry another when she enter into engagement with D and she did not
disclose this fact to the D. The D argued that if he knew about this fact, he would
not enter into an agreement to marry her. The court rejected the claim as P owes no
duty to disclose her past, unless it touches the very root of the marriage.
• (iii)The Plaintiff’s moral, physical, mental infirmity
• There are 2 situations:
• (a) The P had an infirmity and this was not discovered until after the agreement was made;
• (b) The infirmity only begun after agreement was made
• In the case : Jefferson v Paskell (1916) 1 KB 57.The P contracted tuberculosis after the engagement.
The D broke the engagement on reasons that she was unfit to marry on the fixed date due to her
infirmity. The onus to prove that P was fit to marry on the fixed date lies on P, not on the D. The P in
the case successfully proven that she had received treatment and recovering from it within 6 months.
As such the defence was not accepted by the court.
• (iv) The Defendant’s own infirmity
• The D may argue that due to his/her own infirmity the marriage could not be solemnized.
• In the case of Hall v Wright (1859)EB & E 765. Where the D occasionally suffered
bleeding in his lungs. He claimed that this bleeding was an infirmity and the excitement
of marriage would endangered his life, therefore he refused to marry the plaintiff. The
court refused to accept his contention or argument. There was no defence for the said
breach by the D.
• 
 REMEDIES

• The plaintiff will received damages in lieu of the said breach as his or her
remedies.
• The remedies available can be divided into:
• (i) General damages
• This will be payment for losses that is difficult to quantify or which cannot
be specifically proven with receipts for example humiliation, shame or
mental anguish suffered by the innocent party of the breach.
• (ii) Specific damages
• The loss that can be quantified in monetary terms or proven with specific
receipts such as the expenses for the wedding.
• In the case of : Dennis v Senayah[1963] 3 MLJ 95 the court took into account
the P`s humiliation and mental anguish, and also her father`s standing in the
community, in determining the quantum of damages. The P was awarded a
general damages of RM 1500 and special damages for RM 620.10
• (iii) Exemplary damages
• Exemplary damages are not based on the injury to the plaintiff. Instead, it looks to
the conduct of the defendant.
• In other words, exemplary damages are awarded when the Court wishes to signify
its disapproval, condemnation or denunciation of the defendant’s conduct, quite
independently of any injury suffered by the plaintiff. The purpose of awarding
exemplary damages is to deter future occurrences and punish the wrongdoer.
• In seeking to quantify exemplary damages, the principles set out by Lord Devlin in the case of Rookies v
Barnard  [1964] AC 1129  are helpful:
• Exemplary damages are only recoverable by the victim of the wrongful conduct- no matter how reprehensible
the conduct is, exemplary damages cannot be awarded to someone who has not been victimised by it;
• It must be assessed with restraint– meaning that the quantum of damages awarded must be moderate and not
excessive;
• The means of the parties must be taken into consideration;
• It is to be awarded “if but only if” compensatory (including aggravated) damages are not sufficiently punitive.