Introduction

More often than not, promises made in the heat of the

moment should be taken with a pinch of salt. Breaching
such promises may not have dire consequences. The
repercussions of broken promises pertaining to marriage,
however, may be actionable in court. In this paper, the
complexities of such breaches are examined.

In the context of marriage, a promise may be express or

implied. A promise is deemed express when a proposal is
made and accepted; simpliciter. Proving the verbal
exchange of promises may require subsequent conduct
consistent with the said promise. Conversely, a promise is
implied where the agreement is inferred from the
behaviour of the parties towards each other or from the
giving and acceptance of an engagement ring.

In some instances, promises may be conditional, in which

case there must be evidence of the non-fulfilment of the
condition before an action can be maintained. In the 1928
case of KWAME ADDO V ADJOA DUKO, the promise was
conditional. A breach was occasioned when Ms Adjoa
Doku failed to fulfil her part of the promise.

Breach of promise to marry is an actionable tort under

Customary law and Common law. It refers to a legal claim
where one party alleges that the other has failed to fulfil a
promise to marry, resulting in emotional distress or other
damages. In an article by PROF. HENRIETTA MENSA-
BONSU (MRS.) JSC she stated that

"An action for breach of promise to marry arises when a person

makes a promise to marry another and refuses to perform. The
refusal could be by conduct… or by an express refusal upon a
request for performance. Unchastity does not operate as a
defence unless it is unknown to the defendant. Otherwise, it only
goes in the mitigation of damages."
Historically, there were two (2) main grounds for
instituting an action for Breach of Promise to marry under
Common Law;

1. The financial standing of women was formerly entirely

dependent on marriage; as a result, breaking a serious
vow to marry a woman would not only be emotionally
devastating but would also have had a long-term
economic impact.

2. Women were also required to remain chaste until

marriage. When a man promised to marry a woman, it
was believed that the woman was very likely to preserve
her virginity as she awaited the fulfilment of the promise
made to her. Thus, there was a need to prevent men from
taking undue advantage of women by breaching their
promise to marry without reasonable cause.(3)

Lawsuits related to a Breach of Promise to marry have

become more prevalent because of increased awareness
of their right to claim damages. As societal expectations
change, legal systems have also adapted to address new
perspectives and challenges in interpersonal
relationships.

Types of Breach of Promise to Marry

There are two types of breaches: Anticipatory breach and

Non-performance breach.

Anticipatory breach is occasioned when the parties agree

to marry at a specific time or upon the occurrence of a
particular event. If one of the parties withdraws from the
agreement before the date of the marriage or before the
occurrence of the event, the party withdrawing will be in
anticipatory breach. When this occurs, the law permits the
injured party to sue the party in breach for damages
without waiting for the due date or event occurrence.

A non-performance breach, on the other hand, is said to

have taken place when the due date lapses or the event
occurs, and either party fails or refuses to make good
his/her promise. In the case of AFRIFA V. CLASS-PETER ,
Afrifa, an Ashanti businessman, proposed marriage to a
Ga school mistress Class-Peter, who consented. They lived
together, and in anticipation of the marriage ceremony,
Class Peter gave up her employment. Afrifa set several
dates for the wedding, but each was postponed. Afrifa
flirted with other women and had a child with one of the
said women. Eventually, Class-Peter caught him in the
arms of another woman and subsequently sued Afrifa for
breach of promise to marry. Class-Peter was awarded
damages as Afrifa failed to fulfil his promise, leading to a
non-performance breach. In ANNING V KINGFUL , it was
held that, an agreement to marry is an agreement to
marry within a reasonable time.

In the case of AMA SERWAA V. GARIBA HASHIMU AND

ISSAKA HASHIMU as well, the court, speaking through Prof
Mensa-Bonsu (Mrs.) JSC stated:

"It is not the law that for an action for breach of promise to
marry to succeed, there must be a subsisting customary
marriage, whose failure to be converted to an ordinance
marriage grounds the action. It is thus the case that where a
man or woman makes a promise of marriage to another and
then fails to carry it through, it is a cognizable wrong for which
the court would give a remedy."
Elements Of Breach of Promise to Marry

There must be an exchange of promises. The promise

may be conditional, in which case there must be evidence
of fulfilling the condition before an action for the breach
would lie. Where there is a general promise of marriage,
an intention to perform within a reasonable time would be
imputed.(7)

It must be noted that a promise given to a minor or even

a married person is null and void. In order to establish
legally enforceable relationships, promises must be made
by and to individuals with full legal capacity.

Additionally, consideration must be passed from one party

to another to be legally valid and enforceable. The
evidence of consideration is the basis for establishing the
existence of a contract. In a promise to marry, the
reciprocal promise of a woman to marry a man who
promised to marry her is usually regarded as
consideration.
Damages

The courts make haste slowly when awarding damages for

a breach of promise to marry. They take into account the
financial position of each individual before the promise to
marry, an estimated projection of how the marriage would
have financially be affected by each party, and the
financial and social standing of the defendant, which
would provide an estimate of the lifestyle the plaintiff
would have enjoyed.

The court would also consider physical intimacy, such as

pregnancies or children between the parties, emotional
distress, loss of social standing, loss of future income, and
loss of virginity. In the case of DONKOR V. ANKRAH, the
court held that where a man withdraws from an
agreement to marry a woman who has had a child for him,
he will be ordered to pay damages to her because she
may be less attractive to other men, having already had a
child.

Defences to Breach of Promise to Marry

There are several defences in law to an action for breach

of promise to marry, which would otherwise negate the
breach and deny the injured party a remedy in law. These
include:

1. Where the injured party fraudulently persuaded the

other party to enter into the agreement. For instance,
where the person bringing the action misrepresented to
the other that he or she was not married when, in truth,
he or she was married when the promise was made, it will
be an excellent defence to an action of breach of promise
to marry.

2. A later discovery of the existence of extreme/bad

character on the part of the person bringing the action.

3. A mutual agreement by the parties to resile from the

agreement.
4. Insanity on the part of the person bringing the action.

5. Infidelity.

6. Lack of capacity to enter into a binding agreement

7. Bodily infirmity, which would undoubtedly render such

party unable to perform his or her part of the agreement
and other similar factors.

Conclusion

The phenomenon of being in love is closely joined to

making promises. These promises are made to prove
one's love and to reassure the other party that they will
stay with them through thick and thin. Whether these
promises are intended to be legally binding is for the
courts to decide. The season of love is upon us; many may
be tempted to make extravagant promises. One must,
however, be careful not to make any promise that could
fall into the ambit of Breach of Promise to marry. To be
forewarned is to be forearmed.