BETROTHAL / PROMISE TO MARRY

 THE LAW IN MALAYSIA

A contract to marry or an agreement to marry refers to the contract where

parties agree that they will marry some time in the future.

No provision in LRA relating to betrothal in Malaysia and breaches of contract of

marriage.

Follow common law i.e. based on contract

 REQUIREMENTS

A valid contract has its basic elements:-

1. OFFER

Where one party (promisor/offeror) makes a promise to marry (offer) the

other party (promisee/offeree)

2. ACCEPTANCE

The offeree accepts the promise to marry made by the offeror.

3. CONSIDERATION

Consideration in a contract of betrothal is the agreement/ consent of the

other party (promisee) to marry the party making the promise (promisor).

It may also be proved by the party doing some act requested by the other
party such as shifting over to live in another place.

Harvey v Johnston (1848) 6 CB 295

D had promised to marry P within a reasonable time after her arrival at

Lisahoppin, Ireland if she would go to Lisahoppin for the purpose of
marrying D. she was single and resided at Toronto, Canada. She went to
Lisahoppin as requested but D failed to carry out his promise. She sued
him for breach of promise to marry. D alleged that there was no sufficient
consideration for his promise.

Held: there was perfectly good consideration.

4. CAPACITY

Both parties to the marriage must have the capacity to marry (at the time
of their marriage).

Parties must be single at the time the promise was made

The religion of one or both parties to the contract to marry does not
prevent them from marrying

Parties above the age of 18

They should not be within the prohibited relationship.

 If the parties are below 21 years old, written consent from parents/
guardian is required.

 PARTIES MUST BE SINGLE

If one or both parties to a contract to marry is or are already married, the

contract will be held to be illegal as being a contract contrary to public policy
and unenforceable.

Spiers v Hunt [1908] 1 KB 720

D aged 70 and P aged 31. D promised to marry P upon death of his wife (D’s
wife suffered a heart ailment from which she was expected to die suddenly
and early). P knew that D was a married man. D then refused to marry P. P
sued for breach of promise.

Held: that the promise was illegal due to the incapacity of D.

EXCEPTIONS

1. If P had no knowledge that D was married when the promise was made.

Shaw v Shaw & Anor [1954] 2 QB 429

Mr Shaw represented himself as widower and went through a marriage

ceremony with P, a widow in 1937. They lived together as husband and
wife. The real Mrs Shaw was alive all the while until she died in 1950. in
1952, P subsequently discovered that she was all along not legally married
to Mr Shaw. P sued the administrators of Mr Shaw’s estate for damages for
breach of contract to marry by the deceased.

Held: P was entitled to damages as the deceased breached the contract to

marry.

“…the most important breach of all was at the moment of his death
because when he died she was not his widow, as she thought she was.
She was in law a stranger. That is the breach for which, in my judgment,
damages can be recovered.” (Denning LJ)

2. When a decree nisi is pronounced dissolving or annulling a marriage.

Fender v St John-Mildway [1938] AC 1

D’s wife had already obtained a decree nisi of divorce on the ground of D’s
adultery with P at the time when D had promised to marry P upon a date
after the decree had become absolute. D broke off the engagement.
Subsequently he married another woman and P sued him for breach of
promise.

Court awarded P damages for breach of promise to marry.

3. When a man is permitted to have plurality of wives by his personal law

Nafsiah v Abdul Majid [1969] 2 MLJ 175

P sued for damages for breach of contract to marry. The parties were
Muslims. D’s Counsel attempted to rely on the general rule of law which
 invalidates a promise to marry if the woman knew that the man was
already married at the time of the promise.

Held: that when D’s personal law allowed him to marry more than one
wife, the promise was valid. Damages was granted to P.

#no longer applicable with the enforcement of Article 121(1A) of the

Federal Constitution.

 RELIGION OF PARTY/PARTIES PREVENT THEM FROM MARRYING

When the religion of one or both parties to the contract to marry prevent
them from marrying. In such situation the contract is not valid

Mary Joseph Arokiasamy v Sundram [1938] MLJ 4

A Hindu man had promised to marry a Christian girl. The girl was informed
that the man’s wife had died. The man, however breached his promise.

Held: there was no religious impediment against a Hindu man marrying a

Christian girl. The promise to marry was therefore valid and enforceable.

 AGE

LRA is silent on the matter as regards to permitted age to enter into the
contract to marry. However, since LRA provides for the minimum
marriageable age, it is contended that these ages be the minimum age
requirements for contracts to marry.

Minimum marriageable age for girls is 16 years (after the solemnisation was
authorised by the Chief Minister) and for boys is 18 years (Sec 10 LRA)

Rajeswary v Balakrishnan [1958] 3 MC 178

P was a girl who had entered into a contract to marry when she was still a
minor. D had breached the contract and she sued him for damages.

Held: a minor could not enter into a valid contract

PARTIES NOT WITHIN PROHIBITED RELATIONSHIP

Section 11 LRA

Consanguinity (relationship by being descended from the same family) and

affinity (relationship by marriage);

Relationship of the half blood is as much an impediment as relationship of the

full blood and it is immaterial whether a person was born legitimate or
illegitimate.

 WRITTEN CONSENT FROM PARENTS/ GUARDIAN IS REQUIRED (IF

BELOW 21 YEARS)

Section 12 LRA
Consent of parents or guardian in writing:-

Father, mother (illegitimate/ if father dead), adopter father @ mother or

person standing in loco parents

Court can also give consent if person required refused to do so.

Application made in High Court in chambers

 BREACH OF BETROTHAL

The action for breach of betrothal will lie against the party in breach whether
it is a man or a woman.

Where a specific date of the marriage is not fixed or known, the marriage
should take place within a reasonable time.

If a party demand for the marriage, the other party must have a reasonable
excuse for not wanting to go through with the marriage.

 DEFENCES

Misrepresentation of facts by P

D may prove that he or she had entered into the contract to marry as a result
of a material misrepresentation of facts by P.

Wharton v Lewis (1824) 1 C & P 529

Facts: Before the engagement, P’s brother had informed D that her father
would leave property to her upon his death. As it turned out, the father had a
short time before, paid off his creditors. (P’s brother and father represented
the information as false)

The other point was in relation to P’s past when she was at Oxford. D had
broken off the courtship when he received information concerning the
questionable life P had been leading in Oxford. (it was discovered that P had
in fact been leading a questionable life)

Held: misrepresentation did not occur as he was not induced by the promise.
Defense failed. (P was awarded damages by the Court)

A Contract to marry is not a contract of uberrimae fidei.

A contract uberrimae fidei is one where a party has to disclose to the other all
relevant facts and information.

Beachey v Brown (1860) EB & E 796; [1843] ER Rep 506

D had raised the defence that P had agreed to marry another when she
entered into an engagement with D. had he known this, he would not have
agreed to marry P.

Held: not entitle D to refuse to fulfill his engagement. “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” (Cockburn CJ)
P’s own moral, physical or mental infirmity which renders P unfit for the
marriage

It must be proved that the infirmity was discovered either after the
engagement contract had been made or that the infirmity had only begun to
develop after the making of the contract.

Jefferson v Paskell [1916] 1 KB 57

Facts: P contracted a disease of the chest soon after her engagement. She
thought it was a mere chill, but the doctor diagnosed tuberculosis. In any
case, she was not ready and was unfit for marriage on the day fixed for the
wedding. She underwent treatment but D refused to marry her even though
she was given a clean bill of health less than 6 months thereafter. However, it
turned out that P’s illness was not tuberculosis. D was sued for breach.

Court granted damages to P as D failed to prove that he honestly and

reasonably believed P to be unfit for marriage.

D’s own mental or physical infirmity is not a defence

Hall v Wright (1859) EB & E 765; [1843-60] All ER Rep 734

D failed in his defense of his own physical infirmity in an action of breach of

promise to marry against him. D had pleaded his own supervening ill-health,
that is a serious occasional bleeding from the lungs from which he was still
suffering and alleged that he had been warned that the excitement of
marriage would endanger his life.

Held: D’s own mental or physical infirmity is not a defence in an action of

breach of promise to marry.

 CONSEQUENCES

Parties can claim for :-

1. Damages

There are 2 kinds of damages

General damages: damages for the abstract. In assessing the proper

amount of damages, the judges are not limited to the mere pecuniary loss
which P has sustained but may take into consideration the injured feelings
and wounded pride of P.

Special damages: damages for specific items and which may be quantified
in monetary terms, such as damages for medical expenses and wedding
preparations

DENNIS V SENNYAH [1963] MLJ 95

Facts: P alleged that as the result of the breach, she had endure
humiliation and mental anguish. She has incurred expenses to the amount
of RM870.10 and wished to claim both general and special damages.

The learned judge found no aggravating circumstances such as an

allegation of seduction. There was naturally mental anguish and
humiliation. On P’s future prospects for marriage, he found her to be
 young and her prospects not marred as such. He also considered her
father’s standing in the community. Therefore, General damages
amounting of RM 1,500 was awarded. Special damages for food items,
saris and costs of wedding preparations which totaled RM 620.10 was also
approved.

2. RETURN OF GIFTS

Only the wrongful party/ D should return the gifts and ring to P.

If the contract to marry is dissolved by mutual consent, both parties must

return the engagement ring and gifts.

COHEN V STELLAR [1926] 1 KB 536

Facts: a man who had been awarded damages for breach of promise
claimed the return of the ring.

Held: “if a woman who has received a ring refuses to fulfill the conditions
of the gifts she must return it. So, on the other hand, I think that if the
man has, without a recognised legal justification, refused to carry out this
promise of marriage, he cannot demand the return of the engagement
ring…if the engagement to marry dissolved by mutual consent, then in the
absence of agreement to the contrary, the engagement ring and like gifts
must, I think, be returned by each party to the other….” (McCardie J)