FAMILY LAW (DIL2232)

TOPIC 1: PROMISE TO MARRY (BETROTHAL)

INTRODUCTION

➢ Promise to marry or betrothal is an agreement to marry. In order to enter in to a valid contract of

betrothal, both parties must fulfil the requirements of valid promise to marry.
➢ It is important to note that breach of promise to marry is not provided for in the Law Reform (Marriage
and Divorce) Act 1976 (hereinafter referred to as the LRA).Therefore, reference is made to the common
law and Malaysian case laws.
➢ When disputes arise, it is essential to identify the validity of the contract to marry and to determine the
remedies available to the aggrieved party in the event of breach of betrothal.

REQUIREMENT OF A VALID CONTRACT OF A PROMISE TO MARRY

➢ For a legally binding valid contract, the following elements must be fulfilled:
1. Offer
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 offerror.

3. Consideration
Consideration in a contract betrothal is the consent of the other party (promisee) to marry the
party making the promise (promisor)
Sometimes, consideration takes the form of an overt action on the part of the promisee
For example, the promisee doing some act requested by the other party (shifting to live in
another place).
Case: Harvey v Johnston [1848] 6 CB 195
The defendant promised to marry the plaintiff within reasonable time after her arrival at
Lisahoppin for the purpose of marrying the defendant. She went to Lisahoppin as requested
but the defendant failed to carry out his promise.
She then sued him for breach of promise to marry. The defendant objected on the grounds
that there was no sufficient consideration.
However, the court held that there was perfectly good consideration as the plaintiff went to
Lisahoppin as requested by the defendant.

4. Capacity
Both parties to the marriage must have the capacity to marry, that is, at the time of their
marriage:
i. Both of the parties must be single
ii. The religion of one or both parties to the contract to marry does not prevent them from
marrying.
iii. The should be above the age 18
iv. If below 21, the consent of the parent is required; and
v. They should not be within the prohibited relationship
a) Parties must be single at the time of promise. If otherwise, the contract to marry will be
held illegal as being a contract contrary to public policy
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Case: Spiers v Hunt [1908] 1 KB 720

The defendant, aged 70, promised the plaintiff, aged 31, to marry her upon the death of his
wife. The plaintiff knew that the defendant was a married man. The defendant’s wife who
was older than him suffered a heart ailment from which she was expected to die suddenly
and early. However, she did not die until eight and a half year later. The defendant then
refused to marry the plaintiff. She sued for breach of promise to marry.
The court decided in favour of the defendant because the promise was illegal due to the
incapacity of the defendant on the grounds that such a contract was against public policy
and morals.

However there are exceptions to the rule that a contract to marry another would be void if
one of the parties is not single at the time the promise was made:
The plaintiff claimed that she did not know that defendant was married when the
promise was made ( Shaw v Shaw [1954] 2 QB 429)
On the promise to marry during the period of decree nisi ( Fender v St John Midway
[1938] AC 1)
When a man is permitted to have plurality of wives by his personal law (Nafsiah v
Abdul Majid [1969] 2 MLJ 175)

b) Religion of one or both parties to the contract to marry does not prevent them to marry
Case: 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.
The High Court found that there was no religious impediment against a Hindu man marrying
a Christian girl. The promise to marry was therefore valid and enforceable.

c) Age
The LRA is silent on this matter as regards the 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 minimum age requirements for contracts to marry and that the parties shall
have to fulfil the other substantial requirement of marriage i.e. (d) and (e) in order to
contract a valid contract of betrothal.
Under S.10 of the LRA, the minimum age of marriage for girls is 16 years and 18 for the boys
Case: Rajeswary & Anor v Balakrishnan & Ors [1958] MC 178
The plaintiff, a girl, had entered into a contract to marry where she was still a minor. The
defendant had breached the contract and she sued him for damages. The High Court held
that a minor entered into a valid contract.

d) Parties should not be within prohibited relationships under section 11 of LRA

BREACH OF BETROTHAL

➢ The action for breach of betrothal will lie against the party in breach whether it is a man or a woman.
➢ There should be specific date of marriage, if not fixed or known, the marriage should take place within
reasonable time.

CONSEQUENCES OF BREACH OF BETROTHAL

1. Damages
There are two kinds of damages, namely general damages and special damages.
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i. General Damages
➢ In assessing the proper amount of damages, the judges are not limited to the mere
pecuniary loss which the plaintiff has sustained, but may take into consideration the injured
feelings and wounded pride of the plaintiff
➢ Case: Dennis v Sennyah [1963] MLJ 95
This case illustrates the two categories of damages in the context of a breach of promise to
marry.
In this case, 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 RM 870.10
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 the plaintiff future prospects for
marriage, he found her to be young and her prospects for marriage. He is also considered
her father’s standing in the community. General damages amounting to RM1, 500 were
awarded.

ii. Special Damages

➢ Damages for special items and which may be quantified in monetary terms, such as
damages for medical expenses and wedding preparation.
➢ Case: Dennis v Sennyah [1963] MLJ 95
The action for breach of promise to marry was successful and the court awarded special
damages for food items, saris and cost of wedding preparations, which totalled RM620.10

2. Return of gifts (ring) in the absence of agreement to the contrary

➢ Only the wrongful party (defendant) should return the gifts and ring to the plaintiff.
➢ If the contract to marry is dissolve by mutual consent, both parties must return the engagement
rings and gifts.
➢ If the marriage does not take place either through the death of the person giving the ring or other
conditional gifts, it should be implied that the gifts shall be returned.

CONCLUSION

➢ In England, the Law Reform (Miscellaneous Provisions) Act 1970 has abolished the breach of promise to
marry as a cause of action in court.
➢ However, in Malaysia, breach of promise to marry is still a cause of action in court by virtue of S.3 (1) of
the Civil Law Act 1956 which provides that in Peninsular Malaysia, the courts shall apply common law
of England and the rules of equity as administered in England on 7 April 1956 (referred as cut-off date)
➢ In Sabah and Sarawak, the court shall apply the common law of England and rule of equity, together
with the statutes of general application, as administered or in force in England on 1 December 1951
and 12 December 1949 (referred as cut- off date).
➢ Since Malaysia has passed these cut-off dates it should not be obligatory for the Malaysian courts to
apply the Law Reform (Miscellaneous Provisions) Act 1970 of England.
➢ Case: Doris Rodrigues v Bala Krishnan [1982]2 MLJ 77
The court maintained that the breach of promise to marry is a cause of action in court although in
England, the Law Reform (Miscellaneous Provisions) Act 1970 has abolished breach of promise to
marry as a cause of action in court.