UGANDA CHRISTIAN UNIVERSITY

COURSE UNIT;FAMILY LAW 1

GROUP 3 MEMBERS;

AYEBARE A.K MICHELLE EKS20B11/03

ASINGYA PATRICIA

NASEREKA AISHA

EDRINE NORMAN OUMA

BWAMBALE JERRY MASITAKI

QTN;BREACH OF PROMISE TO MARRY?

Marriage is a contract between two parties but is a contract of a personal nature. By

referring to the Contract law, in order for a contract of promise to marry to be
rendered valid, there must be offer, acceptance and consideration. As the plaintiff
has established there is a contract, the plaintiff must prove that there was breach by
the defendant.

There can be no action for breach of promise unless a contract to marry has been
made. There are no formal requirements regarding the contract. It needs not to be
evidenced by writing and the law prescribes no particular form of words. A promise
by one person to marry another is not binding unless and until that other also promises
to marry the first person. Mutual promises to marry may be implied from the conduct
of the parties. A declaration of intention to marry another made to a third person will
not constitute a promise unless communicated to the other person on the authority of
the person making the declaration. While it is not necessary that the mutual promises
should be concurrent, both should be made within a reasonable time of one another.
An action for breach of promise to marry may be taken by a man as well as a woman.
In modern times there have been instances of successful actions by men.

Promises to marry made by minors are voidable at the option of the minor. A minor
may sue on such a promise but may not be sued, even if he or she has ratified the
promise after coming of age. On reaching majority a new and independent promise to
marry the other person will be binding. This distinction has been thought to be
difficult to apply in actual cases and has been, variously described as “perplexing”
and “somewhat subtle”, leading to “some extreme refinements”.

The breach of promise to marry is dealt under Contract law. In order to enforce the
promise, it does not require any written agreement or mutual promise which is
expressly worded but it is sufficient enough as long there is evidence of consideration
to create the promise. 

This can be seen in the case of Harvey v Johnston, where the court held that the
defendant could be sued on a promise to marry the plaintiff, made in consideration of
the plaintiff going to Ireland at the defendant’s request to marry him. The conduct of
the parties may justify as an inference that they have mutually promised to marry.

An action for breach will lie against the party in breach whether it is the man or the
woman. There is a breach if one of the party demands for the marriage and the other
party has not able to produce a reasonable excuse for not wanting to go through the
marriage which he or she at the first place agrees to marry. 

In order to understand what breach of promise to marry is, we need to look at the
cases. For example, in the case of Harrison v Cage, the court held that there was a
breach of promise to marry as the defendant’s wife has refuse to marry to the plaintiff
when the plaintiff ask that the marriage to be solemnized even though there is mutual
agreement between plaintiff and the defendant’s wife to marry.

There are a number of  defenses  to the action for breach of promise.

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 defenses that can be used by the parties in default in order to escape liability. ‘
There are 3 possible defenses that can be used in order to escape liability from the
breach of promise to marry, which are;

Misrepresentation of Fact

In order to establish this defense, 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. Here in

this case, the defendant raises two issues of misrepresentation. The first is the
defendant argues that the plaintiff’s brother before the engagement has informed to
the defendant that his father would leave property to plaintiff upon the father’s death.
As it turns out, the father had already used the money (property) to clear all his debt
with the creditors. Secondly, the defendant raises the issue that the plaintiff lives a
questionable life in Oxford which subsequently discover 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 UberrimaeFidei

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 UberrimaeFidea 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 contract to marry, the contract is not a contract of Uberrimae Fidei and

as such the defendant may put forward this as a defense. 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 has raised the defense that the
plaintiff had agreed to marry to another person at the time the contract was made. The
court then rejected his defense 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 defense may be
acceptable.

Moral, Physical or Mental Infirmity

In this defense, 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.

In the case of Jefferson v Paskell , the plaintiff contracted a disease of

the cheast soon after her engagement. The doctor diagnosed her as suffer 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 refuse to marry the
plaintiff even though the plaintiff is declared as healthy. Here, it discovered that the
plaintiff is not suffering from tuberculosis and the plaintiff sued the defendant for
breach of promise to marry. The defendant argues that he is honestly believed that the
plaintiff is unfit for marriage. Philipmore LJ in delivering the judgment stated;“…in
every contract the party who seeks to recover damages for the breach must prove that
he or she was ready and willing to perform it. Now admittedly on the date fixed for
the marriage…the woman was not ready; she was not fit. The burden of proof was
upon her to show that she would be fit within a reasonable time or that she actually
became fit before breach. There was no burden upon the man to show that she was
unfit. But when the woman admitted that she was not fit on [the date fixed for the
marriage] she admitted no more. She did not admit that she had a permanent or even a
prolonged illness. The man, if he relied on her having tuberculosis or any other
permanent or prolonged illness, had to prove it…”

The court here decides on the favor of the plaintiff and damages of £500 were
awarded to plaintiff.

What about the defendant own mental or physical infirmity? Can the defendant raise
his own mental or physical infirmity as a defense to a claim for breach of promise to
marry? In referring to the case of Hall v Wright, the Exchequer Chamber by a
majority held that the plea of own physical infirmity was no answer to the action.
Here it was held that defendant own physical or mental infirmity cannot be used as
a defense.

CONSEQUENCES OF A BREACH OF PROMISE 

Damages can be divided into two categories which are general damages and special
damages. General damages refer to damages for the abstract, such as negligence,
defamation and breach of promise to marry. Meanwhile special damages refer to
damages for specific items and which can be quantified in monetary terms such as
medical expenses and wedding preparations.

In the case of Dennis v Senayah, it illustrates the two categories of damages in the
context of a breach of promise to marry. Here, the plaintiff alleged that as the result of
the breach, she had to endure humiliation and mental anguish. She had incurred
expenses to the amount of $870.10 and wishes to claim both general and special
damages. Hepworth J in deciding at High Court observed:“…the damages in an
action for breach of promise of marriage are not measured by any fixed standard and
are almost entirely in the discretion of the court. They may be of a vindictive and
uncertain kind, not merely exemplary manner. No measure of damages can be laid
down, save that, while in aggravating circumstances the damages may be large, they
should not be fixed as through they were a fine. In assessing damages the injury and
prospects of marriage, the rank and condition of the parties and the defendant’s means
are all matters to be taken into consideration. The conduct of the parties may properly
be considered in aggravation or mitigation of the damages.”

Here the court finds no aggravation circumstances such as an allegation of seduction.

There was however naturally mental anguished and humiliation. The court award the
plaintiff worth of $1,500 for general damages and Special damages for food, saris and
costs of wedding preparations which total to $620.10. By looking at this case, we can
determine the difference of the general damages and specific damages.

 In a 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 which belonged to the defendant but he did not ask for. Court held
that it was not satisfactory to amount to a promise and that silence did not amount to
acceptance.

In Larok v Obuoya (1970) HCB 41 the lady who was the respondent and the
appellant were friends when the lady was a pupil at college she became pregnant and
as a result she was expelled from college. The man then wrote to the lady promising
to marry her by the end of April 1968. In October he again wrote to the lady
indicating that he was no longer keen to marry her. She went to court and sued for
breach of promise to marry and the lower court held that the man had committed
breach of promise to marry and awarded the lady damages of 2000.In this case, the
court based its computation on two grounds:1)that chances of getting married had
been impaired 2)That the injury posed to her feelings.

However, it is important to note that promises to marry are not enforceable if they are
against public policy.
In the case of Spiers v Hunt, the defendant promised to marry the plaintiff on the
death of wife which was contrary to public policy. Held to hold such a contract
enforceable is to introduce into social life an immoral principle and it is only in the
most corrupt conditions of society that such an agreement would be tolerated to be
lawful.

There are 2 exceptions to the above rule and these are:

1. If the plaintiff can show that she lacked knowledge:

It should be noted that a promise by a married man or woman to marry another person
is actionable where the plaintiff had no knowledge of the defendant’s marital status.

In the case of Shaw v Shaw (1954) 2 ALL ER 638, the plaintiff had cohabited with a
man she regarded as a husband for 14 years and they lived together as husband and
wife and at one point even celebrated their marriage. Upon his death, the plaintiff
discovered that for 10 years of their marriage the man had been married to another
woman who died 2 years before him and it was therefore in those 2 years that he had
capacity to marry the plaintiff. i.e was only or 2 years of their cohabitation and only in
those 2 years that he should have legally been married to her. She sued for breach of
warranty and that warranty was that he was single and had capacity to marry and he
had therefore breached his promise to marry her. Court awarded her damages for
breach of that warranty.

2. If the promise to marry was made after decree nisi had been made:

Decree nisi means an order of court stating the date on which a marriage will end
unless a good reason not to grant divorce is produced.

In the case of Fender v Mildmay, the respondent’s wife petitioned for a divorced

due to the respondent’s adultery with the appellant. On two occasions after the
declaration of decree nisi but before the declaration of decree absolute, the
respondent promised to marry the appellant, and after declaration of decree
absolute the respondent refused to marry the appellant. It was held that there was
no rule of public policy which prevented the contract from being enforced. The
enforcement of a contract is not against public policy unless it is likely to lead to an
injurious action.

Decree absolute is a court’s final order officially ending a marriage, enabling either
party to remarry.

Therefore the whole position of married parties is changed and fixed not by a mere
separation or lodging a petition for divorce, but by a pronouncement of decree nisi.
REMEDIES TO BREACH OF A PROMISE TO MARRY.

Specific performance. However, damages for injured feelings or reduced chances of

marriage are awarded and these are called general damages. Special damages for
expenses incurred can also be awarded.

Damages awarded in actions for breach of a promise to marry are discretionary in

nature. Exemplary damages may be awarded by the judge and depending on the
behavior of the parties, the damages may be aggravated or mitigated.

Return of gifts. As already noted above, the gifts given, it is implied, where the
contract is broken, should be returned unless they were given unconditionally. But the
party at fault is not entitled to benefit from their own wrong.