civil family law - promise to marry (betrothal)

BLS (Hons)/ UiTM 10/27/2013

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Promise

to

Marry

(Betrothal)

1azrin hafiz / BLS (Hons) / october 2013

What is betrothal?

• An agreement to marry between two parties

* The breach of promise to marry is not

governed by Law Reform (Marriage and

Divorce) Act 1976 (hereinafter will be referred

as LRA)


Four elements of betrothal

valid contract ?

breach of contract ?

defences ?

remedies ?

Is there any

If YES, has there been a

If YES, does the defendant have any

If NONE, what are the


Requirements of a valid contract of a

promise to marry

i.

Offer

• One party (offeror) makes a promise to marry

• e.g “would you marry me?”

ii.

Acceptance

• The offeree accepts the promise

• e.g “yes, I do”

iii.

Consideration

• Consent of the offeree to marry offeror

• May take the form of an overt action


Harvey v Johnston [1848] 6 CB 195

Facts:

The df promised to marry the plf within reasonable

time after her arrival at Lisahoppin for the purpose of

marrying the df. She went to Lisahoppin as required

but the df failed to carry on his promise. Df argued

that there was no consideration.

Held:

There was perfectly good consideration as the plf has

moved as requested by the df. The plf entitled for the

remedies 5azrin hafiz / BLS (Hons) / october 2013

iv. Capacity

a. Both parties must be single;

b. The religion of parties does not prevent them from marrying;

c. Parties should be above the age of 18;

d. If below 21, consent of parents is required; and

e. Parties are not within the prohibited relationship.



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a. Both parties must be single

If you making the promise at the time where you are not

single, the contract to marry will be held

illegal as contrary to public policy

When plf can prove she did not know that the df was a married when the promise was made

Promise was made during the period of

decree nisi

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

#General rule

Exception #1

Exception #2

Exception #3


Excp #1: Shaw v Shaw [1954] 2 QB 429

• Mr Shaw represented himself as a widower and later married plf although the real MrsShaw was alive. Plf found out that their marriage was illegal and sued for MrShaw’s administrator for breach of contract to marry

Fact

• She was entitled to damages as the deceased breached the contract to marryHeld


Excp #2: Fender v St John Mildway[1938] AC 1

Promise made after decree nisi obtained by the wife but before decreeabsolute. However df broke off the engagement and married another woman,plf sued him for breach of promise to marry

• Fact

A promise made by df, after a decree nisi for the dissolution of the marriage has been pronounced, to marry a plf after the decree has been made absolute is not void as being against public policy, and an action for damages for breach of the promise is maintainable by the plf.

• Held9azrin hafiz / BLS (Hons) / october 2013

What is decree nisi ?

• The order made by the court for divorce, on

satisfactory proof being given in support of a petition

for dissolution of marriage ;

• It remains imperfect for at least six months, (which period may

be shortened by the court down to three,) and then,

unless sufficient cause be shown, it is made absolute on

motion, and the dissolution takes effect subject to appeal.

Source - http://thelawdictionary.org/decree-nisi/


Excp #3: Nafsiah v Abdul Majid(No. 2) [1969] 2 MLJ 175

• Islamic law allows a man to have 2, 3 or 4 wives at

one time

• Plf sued for damages for breach ofcontract to marry. Parties were Muslims.Counsel for df relied on the #generalrule of law

Fact

• Court declined to accept df’s argumentand relied on his personal law whichallowing him to marry more than one.Thus promise was valid and damagesgranted to plf

Held


Nafsiah’s case was decided in 1969,

prior to the amendment of Art

121(1A) of the Federal Constitution.

Thus after this amendment, the civil

court would not have jurisdiction to

hear the cases of breach of promise to

marry between Muslim parties

Remember!!!


http://thelawdictionary.org/dissolution/

http://thelawdictionary.org/sufficient-cause/



http://thelawdictionary.org/decree-nisi/






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b. The religion of parties does not

prevent them from marrying

Case

• Mary Joseph Arokiasamy v Sundram[1938] MLJ 4

Fact

• A Hindu man promised to marry a Christian girl and she was being informed that his wife had died. However he breached his promise.

Held

• There was no religious impediment against a Hindu man marrying a Christian girl . The promise was therefore valid and enforceable.


Section 10(1) of Islamic Family Law

(Federal Territories) Act 1984*:

No man shall marry a non-Muslim except a

kitabiyyah

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Recall!!!

* On the issue, where one party is a Muslim

c. Parties should be above the age

of 18

• LRA is silent on permitted age to enter into the

contract to marry.

• Under Sect 10 of LRA, the age of marriage:


Girl – 16 years (after the solemnization of marriage was authorized by Chief

Minister)

Boy – 18 years


Indian case:

Rajeswary v Balakrishnan[1958] MC 178

Fact:

The plf, a girl, had entered into

contract to marry when she was

still a minor. The df breached the

contract and she sued for damages.

Held:

Minor could enter into valid contract

to marry

However, in Malaysia,

the parties are

subjected to Sect. 11 of

Contracts Act 1950,

where the parties to

contract must be at the

age of majority.

d. If below 21, consent of parents

is requiredBy virtue of Sect 12 of LRA, the written consent is

required:


• fatherBiological

• motherIllegitimate / father is dead

• Father or mother, if father is deadAdopted

• A person standing in loco parentisParents are dead

e. Parties are not within the

prohibited relationship.

By virtue of Sect 11 of LRA, e.g. grandparent,

parent, sister, uncle, etc.

Sect 11(1) of LRA provides that a person who

is Hindu, can marry in accordance with Hindu

custom, his sister’s daughter (niece) or her

mother’s brother (uncle).



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If there is a valid contract, has there been

a breach of that contract?


The action of breach of betrothal will be lied against the

defaulted party disregard a man or woman

Case

• Frost v Knight (1872) LR 7 Exch III

Fact

• Df promised to marry plf after his father die. But later, before the death, he has cancelled the promised.

Held

• Plf can bring action for the breach and no need to wait until his father death. It is called as anticipatory breach

If there is a breach, does

defendant have any defences?



Defences

a)

Misrepresentation of fact

d)

Df’s own mental / physical infirmity

c)

Plf’s own moral physical / mental infirmity

b)

Contract to marry is not a

contract of uberrimei

fidei

a) Misrepresentation of fact

e.g

If a person telling you he is a CEO in a multi

million profit company, but it is later found out

that, he is merely a clerk.

You have to prove that there is a total reliance

to information given.


Case

• Wharton v Lewis (1824) 1

C & P 529

Fact

• The plf’s brother came into the picture and said that the plf’sfather would leave his property to the plf upon his death. It was subsequently discovered that the plf had in fact been leading a questionable life.

Held

• There was no reliance towards the information given to him as he madly in love with the plf. He not bothered with the false information. Thus the court decided in favour of the plf.


b) Contract to marry is not a

contract of uberrimei fidei

Contract of uberrimei fidei is where a party has

to disclose to the other all relevant facts and

information.

For the purpose of this defence, the parties

are not required to inform everything

between them.



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• Beacheyv Brown (1860) EB & E 796

Case

• Df raised the defence that he would not have agreed to marry the plf if he knew that she had made a promise to marry someone else.

Fact• As the contract to

marry is not a contract of uberrimei fidei, the court rejected df argument and gave judgment to plf

Held


c) Plf’s own moral physical / mental

infirmity


The infirmity was discovered after the engagement contract

or only had begun to develop after the making of the contract

which renders the plf unfit for the marriage

Case

• Jefferson v Paskell[1916] 1 KB 57

Fact

• The plf contracted a chest disease soon after her engagement. She thought it was mere chill, but it was diagnosed tuberculosis. She was not ready and unfit for the marriage. It was found out that the illness was not tuberculosis. But df still refused to marry plf.

Held

• Damages granted to plfas the df failed to prove that he honestly and reasonably believed the plf to be unfit to marriage.


d) Df’s own mental / physical

infirmityDf used this infirmity to break the engagement ,

this will not be considered as defence.


Case• Hall v Wright [1859] EB & E 765

Fact

• Df had pleaded that his own supervening ill-health would endanger his life and marriage excitement.

Held

• Df’s own infirmity is not a defence in an action of breach of promise to marry

If NONE (defence), what

are the remedies available?


a. Damages

i. General damages

- Damages for abstract i.e

breach of promise to marry.

- In assessing the proper

amount, the judges are not

limited to mere pecuniary

loss, but may take into

account the injured feelings

and wounded price of

aggrieved party.

ii. Special damages

- Something that can be

quantified in monetary

terms.

- E.g damages for wedding

preparations, catering, house

renovation cost etc.



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Dennis v Sennyah [1963] MLJ 95

Fact:

As a result of breach of promise to marry, plf had to endure

humiliation and mental anguish. She had incurred expenses to

the amount of RM 870 and wish to claim both damages.

Held:

the judge take into account the plf’s future prospect of

marriage and her father’s standing in community. General

damages and special damages amounting to RM1500 and RM

620 were respectively awarded


b. Return of gifts

• Only the wrongful party should return the gift

to aggrieved party.


Principles laid down by McCardie J in Cohen v

Stellar [1926] 1 KB 536


If a woman whom received the gift, but refused to fulfill the conditions, she must

return it.

If a man without legal justification, refused to carry out his promise, he cannot

demand for the return of gift.

If betrothal to be dissolved by mutual consent, the parties must return the gifts to each other.

Reference:

Nuraisyah Chua Abdullah, Family law for non-

Muslims in Malaysia, ILBS, Petaling Jaya:

Selangor (2006)

Law Reform (Marriage and Divorce) Act 1976

– Act 164


Thank you for your

attention


prepared by:

Azrin Hafiz

Bachelor of Legal Studies (Hons) student

Faculty of Law

Universiti Teknologi MARA

MALAYSIA

civil family law - promise to marry (betrothal)

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