Written By:
EBERECHI JUSTICE U. and WANOGHO HENRY O.
INTRODUCTION
The concept of love and marriage, are essential and deserving in the life of every human being. Over the years and in increasing numbers we have witnessed breakdown of love, relationship and marriage proposals, as tales of heartbreak are uncovered everyday. Leading us to ponder on these questions –
Why are marriage proposals called off?
What does the law has to say?
Are there legal consequences for such breach of promise?
Interestingly, this article is intended to serve as an expose and provide felicitous answers to these seemingly lamentable questions, as well as the necessary steps to take should one find themselves in such situation.
For the purpose of proper elucidation, we have structured this article into six parts, which will be discussed in details.
1. DEFINITION OF CONCEPTS:
For the purpose of understanding, the key concepts in this article, are as follows :- marriage, promise of marriage and breach. As such, these concepts will be defined below.
Marriage: According to the Blacks Law Dictionary, marriage is defined as “a contract, according to the form prescribed by law, by which a man and a woman, capable of entering into such a contract, mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and a wife.[1] In same vein the English Learners Dictionary saw the institution of marriage as “A union of two or more people that creates a family tie and carries legal, social, and/or religious rights and responsibilities”[2]
Therefore from the above definitions with recourse taken to the Blacks Law Dictionary, marriage is seen, recognized and understood as a contract, breach of which is redressible by legal actions in court. Furthermore, marriage was conceptualized in the case of In Hyde v Hyde[3] as the voluntary union of life of one man and one woman, to the exclusion of all others.
Promise to marry: This is an agreement, a contract entered into mutually by a man and a woman, that they would get married to each other. Prior to this mordern time, promise of marriage is coined to me betrothal. It is worthy to note that parties who haved made such promise are regarded as fiancee(s). Promise to marry as a contract, is formed when the parties mutually exchange the promise of to get married to each other.
Breach: Figuratively, a breach or to breach means to break a promise. Thus, breach in this context can be said to mean an unjustifiable failure to perform under the terms of a contract when performance is due.
Having briefly examined the concepts, we can now understand that Breach of promise to marry refers to a situation where one party fails to fulfil their promise or agreement to marry another, causing emotional distress and potential financial loss. In Nigeria, this area of law is governed by statutory provisions and recent judicial precedents.[4]
2. MARRIAGE AS A BINDING CONTRACT:
From the exclusive and substantive definitions of marriage above, we can gleam that marriage is a contract. Therefore, we will briefly streamline the reality of this assertion with legal concepts. To this end one may ask, what is a contract? In ordinary parlance, a contract is defined as an agreement between two or more parties, to perform a specific job or work order, often temporary or of fixed duration and usually governed by a written agreement.
Sagay, a professor of law illuminated on definition of contract by stating that a contract is an agreement which the law will enforce as affecting the legal rights and duties of the parties involved. This was adopted by the court in the renowned and famous case of Orient Bank (Nig.) Plc v. Bilante Int’l Ltd.[5] Moreso, in Ezeanah V Atta, Niki Tobi JSC stated inter alia that “…. an agreement or contract to marry is a bilateral affair between a man and a woman, both parties must be ad idem in respect of any collateral transaction relating to the intended marriage and breach of that promise is enforceable against the person who breached”.[6]
3. NATURE AND PROOF OF BREACH OF PROMISE TO MARRY:
The breach of promise to marry comes in different ways and certain key elements must be demonstrated. That is, these elements must be proven in order to successfully bring an action for breach of promise to marry.
It should be noted that a breach of promise to marry, could come in the form of an anticipatory breach. An anticipatory breach is a breach of contract where one party indicates prior to the time of performance that he or she will not perform when performance is due. It also means a a breach of contract that occurs when one party announces before the time scheduled for performance that he or she will not perform according to the contract. As it relates to Promise of marriage, an anticipatory breach occurs where the defendant’s action renders impossible the performance of the contract. In the case of Uso V Iketunbosin, the defendant promised to marry the plaintiff in 1947 but got married to another woman in 1957. The Court ruled that the defendant’s actions constituted a breach for which the plaintiff was entitled to monetary damages.[7]
As such, two factors are required to be proven in an action for breach of promise to marry, as the nature of the breach is immaterial. These prerequisite requirements were laid down in the case of Ezeanah V Atta (Supra) and are as follows
There was a promise to marry
There was failure to fulfill such promise.
There was a promise to marry: The law is certain that there can be no action for breach of promise unless there exists a contract to marry. Consequently, the party alleging breach must prove to the court’s satisfaction that there existed a promise to marry made by the defendant under the applicable laws. As such,promise to marry made under customary or native laws will not be actionable.[8] Moreso, the party jilted must prove to the satisfaction of the court that there was in fact a promise of marriage under the Matrimonial Causes Act, 1990 on the part of the other sex. Therefore For such a promise to be considered a valid agreement in the eyes of the law, it must transcend a mere convivial or romantic relationship and conform to all the principles of contract law discussed earlier.[9]
There was a failure to fulfill such promise: It is only logical that upon the proof of the existence of the promise to marry, an aggrieved party must however prove the failure to fulfill such promise, as this is a necessary requirement for success. Under this head, the co mplainant must prove that the promisor indeed failed to fulfill his/ her promise to marry the former.
TYPES OF BREACH OF PROMISE TO MARRY
There are mainly two types of breach of promise to marry.
1. Non-Performance: this is where a date has been fixed for the marriage, but the other did not show up or refuses to discharge the obligation.
2. Anticipatory breach: this is where the party prior to the date fixed for marriage cancels it or elopes with another person.
Notably: from the above, it can be deduced that not all relationship or promise to marry can be said to be a contract which will give rise to an action for breach of promise to marry. Thus, there cannot be a breach of marriage until a contract to marry has been made. It is not necessary that the agreement is written as observed in the case of Ezeanah v Atta(Supra)
REMEDIES FOR BREACH OF PROMISE TO MARRY
where one party defaults in his/her promise to marry, the injured can seek redress in court by bringing an action against that other. The remedies available to such aggrieved party are;
* Compensatory Damages
* Special damages
GENERAL DAMAGES: In the case of Uso v Iketubosin,the defendant promised to marry the plaintiff in 1947. In 1957, the defendant married another woman in breach of his promise to the plaintiff. The Court held that the defendant’s act constituted a breach for which the plaintiff was entitled to damages.
These damages may be by way of money or property. Thus, in Ezeanah v Atta the Appellant and the Respondents were lovers. In the course of their relationship, the Respondent lavished gifts as the dominant partner on the Appellant, including sponsorship for further studies in England. There was a dispute between the parties over a property situated at Abuja which was acquired during their relationship. The appellant claimed ownership of the property by stating that that she applied for and completed the application form for the land in her own handwriting and signed it, and that she paid an application fee of ℕ300 and an additional sum of ℕ6,700.00 demanded by the Federal Capital Territory. She also claimed that the Certificate of Occupancy was issued in her name. The Respondent on the other hand took the Certificate of Occupancy a started developing the land. On an action, the trial court held in favour of the Appellant. But on appeal to the Court of Appeal, the Court ruled in favour of the Respondent. On further appeal to the Supreme Court, the Supreme Court upheld the decision of the trial Court and overturned the decision of the Court of Appeal. In the words of Tobi, JSC “Premarital gifts in order to qualify as gifts in furtherance of an agreement to marry, must be clearly and unequivocally traceable to an agreement on the part of the parties to marry. Where gifts part from any of the parties to the other on love and not on the business of agreement to marry, with all the ingredients of offer, acceptance, consideration, intention to create legal relation and capacity to contract the agreement, the court must not come to the conclusion that parties agreed to get married hence the gifts. That is not the talking of the law.”
DEFENCES FOR BREACH OF PROMISE TO MARRY
A contract or promise of marriage would be rendered void if;
(a) either of the parties is, at the time of the marriage, lawfully married to some other person;
(b) the parties are within the prohibited degrees of consanguinity or affinity;
(c) the marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriages;
(d) the consent of either of the parties is not a real consent because it was either obtained by false pretense or it was obtained by duress or undue influence.
Where the party is lawfully married, any promise to marry will be illegal as it threatens the legal bond of marriage and thus unenforceable.
MISREPRESENTATION OF FACT: this is one of the defences available to a party for breach of promise to marry. The person claims to have agreed or promised to marry on the misrepresentation of fact and that if he/she had knowledge of the real fact, he/she won’t have promised to marry.
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 an allegation of misrepresentation. Here in this case, the defendant raised two issues of misrepresentation. The first was, the defendant argues that the plaintiff’s brother before the engagement had informed to 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 was subsequently discover to be true. The court then left it to the jury to decide whether or not the defendant was induced to have made 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 of marriage is not a contract of Uberrimae Fidei (utmost good faith) thus, parties must disclose every information to the other.
MORAL, PHYSICAL OR MENTAL INFIRMITY:
In this defence, the party in default has to prove that the other party has some actual moral, physical or mental infirmity that renders him or her unfit for marriage. Here the infirmity must be discovered either after the engagement contract has been made or that the infirmity had only begun to develop after the making of the contract. Thus, in the case of Jefferson v Paskell The plaintiff contracted a disease of the chest soon after her engagement. The doctor diagnosed her as suffering from tuberculosis and as a result she was unfit for marriage on the day fixed for the marriage. The plaintiff went for treatment but the defendant refused to marry the plaintiff even though the plaintiff was already declared healthy. On action, the court held in favour of the Plaintiff and damages of £500 was awarded to the Plaintiff.
Note that the plea of own physical infirmity is not a defence to an action for breach of promise to marry as was held in the case Hall v Wright
CONCLUSION: As explained above, the breach of promise to marry arises where a person failed to perform his promise to marry the other. This can only arise where the relationship has gone beyond the stage of mere affection. Where it hasn’t gone beyond the stage of mere affection, a person cannot bring an action for breach of promise to marry.
REFERENCES:
[1] Blacks Law Dictionary
[2] English Learners Dictionary
[3] (1886) LRIP&D 130
[4] Egbe v. Adefarasin (1987) NWLR (Pt. 133) 594
[5] (1997) 8 NWLR (Pt. 515) 37
[6] (2004) LPELR-1198(SC)
[7] (1975) WRNLR 187
[8] Ayegba v Ajunwa (Unreported) suit No. MD/3504/77 was delivered on 1 February 1980 by the High Court of Makurdi.
[9] All Answers ltd, ‘Breach of Promise to Marry’ (Lawteacher.net, January 2024) <https://www.lawteacher.net/free-law-essays/contract-law/breach-of-promise-to-marry-contract-law-essay.php?vref=1>
Written By:
EBERECHI JUSTICE U. and WANOGHO HENRY O.
UNIVERSITY OF PORT HARCOURT
Legal Palace 