Contract To Marry: How Practicable?

Contract to marry

The legal definition of marriage was succinctly stated by Lord Penzance in the case of Hyde v Hyde (1866) L.R. 1 P&D 130, to mean the voluntary union for life of one man and woman to the exclusion of all others.

This definition has been the guiding light in the legal world. However, in light of societal changes as regarding gay marriages and transsexuals, it’s been redefined to mean the voluntary union of two parties to the exclusion of others. The case of Godwin v United Kingdom is a major example. In that case, the European Court on Human Rights held that a transsexual who was prevented from marrying a person of her choice because her legal gender fixed at birth which no longer reflected her identity, was violating Articles 8 & 12 of the European Convention on Human Rights (ECHR), namely right to respect for private and family life, and right to marry respectively.

Similar decision was reached in Bellinger v Bellinger. These new turn of events led the government to enact the Gender Recognition Act 2004 and marriage is no longer restricted for those who were born respectively male and female. In Nigeria, this is not applicable as the law is yet to recognise transsexuals and gay marriage.

That not withstanding, the point of emphasis lays beneath the womb of a promise to marry.

Very few minds are knowledgeable of the fact that when a person promises to marry another, it’s binding in law

A mere romantic relationship does not amount to a promise to marry. In Aiyede vs Norman-William, it was held that a promise to marry need not take the oral or written format.
It is pertinent to note that an important criteria for a promise to marry to garner a legal effect is that parties must possess the requisite capacity (an infant is incapable of making a promise to marry) and there must have been a consideration.

Consideration in the sense that there was a reciprocal promise of a woman to marry a man who promised to marry her.
When this promise is broken, it must be proven to the satisfaction of the Court that there was indeed a promise to marry under the relevant law and that the woman or the man failed to honor the obligation. Once these are established, the broken hearted party may sue the other and claim damages under breach of the contract. It is to be noted that damages cannot be recovered unless his or her testimony is corroborated by some material in sync with section 197 of the Evidence Act 2011. This was elucidated in Ezennah v Attah (2004) 2 S.C (pt 11) pg 75.

A breach of promise to marry could either be a non-performance or anticipatory breach. Non-performance occurs when one fails to turn up for the marriage on the date agreed upon. Where no date is fixed, the law implies that the promise is one to marry within a reasonable time or at the request of one party. If, however the promise is subject to a condition precedent for e.g the consent of the parents, there can be no breach until the condition is satisfied. The Aiyede’s case (supra) is an example. Here, the plaintiff’s claim was dismissed because there was a condition precedent to the fulfilment of the defendant’s promise to marry which in this case was receiving the consent of the plaintiff’s father. Similarly, a breach of promise to marry is anticipatory where there is an outright repudiation of obligation by a party or by such conduct on his part that makes it impossible to perform that obligation.

The case of Uso v Iketubosin (1975) WRNLR 187 clearly spells it out. Here, the defendant promised to marry the plaintiff in 1947, but married another in 1957 breaching his promise to the plaintiff. It was held that the defendant’s act constituted a breach for which the plaintiff is entitled to damages.
In spite of this, the one who reneges is not without defence. He can plead under general defences which consists of fraud, duress or misrepresentation, or under special defences which includes moral, physical or mental infirmity. Special defences presupposes that the defendant is morally, physically or mentally unfit for marriage and that the infirmity must have been discovered after the contract to marry was made. The onus is on the plaintiff to prove that the said infirmity exists in the plaintiff as mere suspicion is not enough.

As per damages, the quantum to be recovered is subject to the rules of remoteness I.e the damage should flow directly from the breach or within the contemplation of the parties at the time of the pronise. In respect of this, damages awarded by the court falls under two categories;

1) General damages e.g compensation for the loss of consortium of the other party, injured feelings, wounded pride, etc.
2) Special damages affecting property e.g money spent by the plaintiff as a direct result of the defendant’s breach of promise to marry, recovery of the engagement ring and presents.

It is worthy of note that damages could be claimed against a third party who induced the breach. The court would not grant an order of specific performance to force one party to marry another.
So before you make a promise to marry and plan on breaking that promise, it is wise to think twice.

Author: Bassey Bassey

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