PROMISE TO MARRY

Topic Outline

1) What is Betrothal?
2) Requirements of a valid contract of promise to marry (betrothal)
3) Whether there is any breach of contract/agreement?
4) Defences available
5) Remedies
Meaning of Betrothal

 An agreement to marry between two parties.

 Betrothal is an agreement which is governed by the contract law.
Requirements for a valid agreement to marry

Offer Acceptance Consideration Capacity

Offer

 Section 2(a) of the Contracts Act 1950 : An offer is 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.
Acceptance

 Section 2 (b) ) of the Contracts Act 1950: When a person to whom the proposal
is made signifies his assent thereto, the proposal is said to be accepted, and
becomes a promise.
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.
Case: Harvey v Johnston [1848]6 CB 295

 Court held: There was a perfectly good consideration as the plaintiff

went to Lisahoppin as requested by the defendant.
R.S. Thamalachimi v Sundararaju a/l Mattayah
[2010] MLJU 1339

 Court held: The defendant had breached his promise to marry even though he
married the plaintiff according to Hindu rites and went through a ceremony as he
refused to register the marriage with the plaintiff.
Capacity to marry

 Marital status: Both parties are single

 The religion of one or both parties to the contract to marry does not prevent them
from marrying.
 Above 18 years old
 Not within prohibited relationship
1. Capacity to marry: Marital status

 Both parties must have the capacity to marry at the time of the marriage.
 Parties must be single, since the marriage is a monogamous marriage.
Case: Spiers v Hunt [1908] 1 KB 720

 The court held that the promise made was illegal due to the incapacity
of the defendant on the grounds that such contract was against public
policy and morals.
 The judgment was affirmed in Wilson v Carnley [1908] 1 KB 729
3 Exceptions to the General Rule

I. Plaintiff did not know the defendant to be a married person at the date of the
engagement contract, she will be allowed to recover damages;
II. 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.
III.If the male party is permitted a plurality of wives by his personal law, the
contract to marry is valid.
Exception 1:Plaintiff did not know the
defendant to be a married person at the date of
the engagement contract

 Case: Shaw v Shaw & Anor [1954] 2 QB 429

 Mr Shaw claimed himself to be a widower when in fact he was not. The plaintiff
contracted a marriage with Mr Shaw in 1937. The real Mrs Shaw was alive until
she died in 1950. The plaintiff discovered that the marriage was not valid in 1952.
Plaintiff sued Mr Shaw for breach of promise to marry.
 Court held: Entitled to damages.
Exception 2: On promise to marry during the
period of decree nisi

 Case: Fender v St John Mildmay [1938] AC 1

 House of Lords: Although the promise may prevent reconciliation of
the parties, usually in decree nisi stage, no reconciliation will take
place.
 Plaintiff was awarded damages for breach of promise to marry.
 Exception 3: If the male party is permitted a
plurality of wives by his personal law

 Case: Nafsiah v Abdul Majid [1969] 2 MLJ 19

The parties were Muslims. The defendant claimed that since the plaintiff
knew that the defendant is already married at the time of the promise,
the promise is not valid.
Court: The promise was valid as the defendant’s personal law allowed
him to marry more than one at a time. Damages granted to plaintiff.
***Present day: Civil courts have no jurisdiction to hear cases of breach
of betrothal between Muslim parties.
Dato’ Abdullah Hishan bin Hj Mohd Hashim v
Sharma Kumari Shukla [1999] MLJU 81

 Plaintiff is a Muslim man, made a claim against the defendant, a non-Muslim

woman for breach of promise to marry. The defendant promised to divorce her
husband and embrace Islam and marry the plaintiff but failed to do so. Defendant
claimed that the promise is illegal and contrary to public policy.
 Held: Plaintiff was entitled to damages as the law allowed the plaintiff to marry
more than one. Also no question on contrary to public policy since the defendant
had agreed to convert to Islam before marriage.
2. Capacity to marry: The religion of one or
both parties to the contract to marry does not
prevent them from marrying.

 Case: Mary Arokiasamy v Sundram [1938] MLJ 4

 Court held: No religious impediment against a Hindu man marrying a
Christian woman. Valid and enforceable.
Capacity to marry: Above 18 years old

 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 solemnization of the said marriage was authorized by the
Chief Minister under section 21(2) and 18 years for boys.
 Case: Rajeswary & Anor v Balakrishnan & Ors
[1958] MC 178

 Court held: A minor can enter into a valid contract to marry. The case of Khimji
Kuverji v Lalji Karamsi was referred to.
Breach of betrothal

 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.
Case: Frost v Knight (1872) L.R. 7 Exch.111

 Held : Plaintiff 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

1. Misrepresentation of fact by the plaintiff

2. A contract to marry is not a contract of uberrimae fidei
3. The Plaintiff’s moral, physical, mental infirmity
4. Can the Defendant’s own infirmity be a defence?
Defence 1: Misrepresentation of fact by the
plaintiff

 Case: Wharton v Lewis (1824) 1 CP 529.

 Where the plaintiff’s father and brother presented to the defendant that the
plaintiff 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.
Defence 2: A contract to marry is not a contract
of uberrimae fidei

 Case : Beachey v Brown (1860)EB & E 796

 The court rejected the claim as the plaintiff owes no duty to disclose
her past, unless it touches the very root of the marriage.
Defence 3: The Plaintiff’s moral, physical,
mental infirmity

 2 situations:
 The plaintiff had an infirmity and this was not discovered until after the
agreement was made;
 The infirmity only begun after agreement was made
Case: Jefferson v Paskell (1916) 1 KB 57.

 The plaintiff contracted tuberculosis after the engagement. The defendant broke
the engagement on reasons that she was unfit to marry on the fixed date due to
her infirmity. The onus to prove that plaintiff was fit to marry on the fixed date
lies on plaintiff, not on the defendant.
 The plaintiff 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.
Can the Defendant’s own infirmity be a
defence?

 Case: Hall v Wright [1859] EB & E 765

 Court held: The defendant’s own mental or physical infirmity is not a defence to
breach of promise to marry.
Remedies

1. Damages
 General damages
 Special damages
 Exemplary damages
2. Return of gifts
 Damages: General Damages

 Case: Dennis v Sennyah [1963] 3 MLJ 95

 The court took into account the plaintiff’s humiliation and mental anguish, and
also her father’s standing in the community, in determining the quantum of
damages. The plaintiff was awarded a general damages of RM 1500.
Damages: Special Damages

 The loss that can be quantified in monetary terms or proven with specific receipts
such as the expenses for the wedding.
 Case: Dennis v Sennyah [1963] 3 MLJ 95
 Special damages was awarded for food items, saris and cost of wedding
preparations for the total of RM620.10.
Damages: Exemplary Damages

 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.
Case: Rookies v Barnard  [1964] AC 1129 

 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.
Return of gifts

 Case: Cohen v Stellar [1926] 1 KB 536

 If woman refuse to fulfil promise, she must return it
 If man refused, cannot demand the return of engagement ring.
 Mutual consent: Both parties must return gifts.
 If marriage does not take place either through the death of the person giving the
ring or other conditional gifts, it should be implied that the gifts should be
returned.
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