Promise to marry - Family law (Malaysia)

1. INSYIRAH MOHAMAD NOH 2018
UKM LAW SCHOOL
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PROMISE TO MARRY/ BETROTHAL/ PERTUNANGAN
CHECKLIST
A. DEFINITIONS
B. REQUIREMENTS OF A VALID CONTRACT TO MARRY
C. BREACH OF PROMISE
D. DEFENCES
E. CONSEQUENCES OF A BREACH OF PROMISE
A. DEFINITIONS
- Mutual promise to marry
- The act of betrothing or the act of being betrothed
- An agreement that 2 people will be married
B. REQUIREMENTS OF A VALID CONTRACT TO MARRY
1. Offer
- 1 party must make an offer to another party
2. Acceptance
- Where 1 party had made an offer, another party must accept it. Mere acceptance is
acceptable. The act of agreeing to the contract can be constituted as accepting the
offer
3. Consideration
- The agreement/consent of the other party to marry the party making the promise is
sufficient to constitute considerations.
- It can be proved by the party doing some acts requested by the other party
Harvey v Johnston (1848)
 D promised to marry P within a reasonable time after her arrival at Lisahoppin,
Ireland if she would go there for the purpose of marrying D
 P was single & resided at Toronto, Canada
 She went to Ireland as requested but D failed to carry out his promise
 P sued D for breach of promise to marry
 Court held: (Maule J) There was perfectly good consideration

2. INSYIRAH MOHAMAD NOH 2018
UKM LAW SCHOOL
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4. Capacity
i. The parties must be single
- The parties must be single at the time the promise is made
- If 1/ both of the parties is/ or already married  contract will be held illegal &
unenforceable  contrary to public policy
Spiers v Hunt [1908]
 D (70 yo) had promised P (35 yo) to marry her upon the death of his wife
 P knew D was a married man
 D refused to marry P  P sued for breach of promise
 Court held: (Phillimore J) The court decided in favour of the defendant  the
promise was illegal due to incapacity of D
Wilson v Carnley [1908]
 Issue: Whether a promise to marry after the death of a wife can be enforced by
the court?
 Court held: (Vaughan Williams LJ) Agreed with the stand taken in Spiers v Hunt 
the contract was against public policy & morals  should not be enforced

EXCEPTIONS
1. P doesn’t know that D is still married when the promise is made
Shaw v Shaw [1954]
 1937 – Mr Shaw represented himself as a widower and went through a marriage
ceremony with P, a widow  they lived together as husband & wife
 1950 – the real Mrs Shaw died
 1952 – P discovered she was all along not legally married to D
 Court allowed P to sue
2. A promised was made between decree nisi/ decree absolute had already obtained
Fender v St John-Mildmay [1938]
 A promised can be made when the woman had obtained a decree nisi
 Doesn’t interfere reconciliation process & public policy
3. When a man is permitted to have plurality of wives by his personal law
Nafsiah v Majid [1969]
 When D’s personal law allowed him to marry more than 1 wife, the promise is
valid

3. INSYIRAH MOHAMAD NOH 2018
UKM LAW SCHOOL
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4. When the religion/ both of the parties doesn’t prevent them from marrying each other
- If the religion doesn’t hinder a marriage between them  the contract will be valid
Mary Joseph Arokiasamy v Sundram [1938]
 D (hindu man) promises to marry P (Christian girl)
 P was informed that D’s wife had died
 D breached the promised
 Court held: No religious impediment against a Hindu man marrying a Christian
girl  The promise was valid & enforceable
ii. Age
- Sec. 11 of Contracts Act 1950: a person is competent to enter into a contract if he
has attained the age of 18 yo (*general rule of law of contract)
Rajeswary v Balakrishnan [1958]
 P was a girl that entered into a contract to marry when she was still a minor
 D breached the promise  P sued him
 Court held: A minor may enter into a contract of marry
Same facts of the case & holding
o Fernandes v Gonsalves (1925)
Followed by:
o Khimji Kuverji v Lalji Karamsi (1941)
Distinguished from:
o Mohori Bibee v Dhurmodas Ghose (1930)
- Is parental consent needed in contract to marry?
Mr B v Mrs T
 Doesn’t have to get parental consent to enter engagement contract

4. INSYIRAH MOHAMAD NOH 2018
UKM LAW SCHOOL
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C. BREACH OF PROMISE TO MARRY
i. Date of marriage hasn’t been fixed
ii. Anticipatory breach
- An action for breach of contract to marry will lie against the party in breach – man/
woman
- If a specific date of marriage is not fixed  the marriage should be held within a
reasonable time
- Another party demands for the marriage  another party must have valid &
reasonable excuse for not wanting it (in order to cancel it)
Harrison v Cage (1698)
 P promised to marry D’s wife when she was still single & she had made similar
promise
 P requested for the marriage to be solemnized  D’s wife refused & married D
instead
 Court held: There was a breach to marry
Frost v Knight (1872)
 D promised P to marry her on the death of his father
 Whilst D’s father is still alive, he announced his intention of not wanting to fulfil
his promise & broke off the engagement
 P (without waiting for D’s father’s death) brought an action
 Court held: It’s possible for P to bring action immediately & not wait for the
event to take place
 A contract to marry  be the subject of an action for its anticipatory breach

5. INSYIRAH MOHAMAD NOH 2018
UKM LAW SCHOOL
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D. DEFENCES
i. Misrepresentation of Fact
- D may prove that he/ she had entered the contract to marry as a result of a material
misrepresentation of fact by P
Wharton v Lewis (1824)
ii. A contract to marry is not a contract of uberrimae fidei
- Uberrimae Fidei: Where a party has to disclose to the other party all relevant facts &
information
- Eg: Insurance contract
- Contract to marry isn’t a contract of uberrimae fidei & D may forward this as defence
- Eg: if A is already engaged to B, he didn’t have to inform C at the time he promises to
marry C
Beachey v Brown (1860)
 D raised the defence that P agreed to marry another when she entered into an
engagement with D
 Had he known this, he would not have agree to marry P
 Court held: Rejected his defence & gave judgment to P
Cockburn J: “where it turns out that a woman is of unchaste conduct, which
goes to the the very root of the contract of marriage, there, from the excess
and necessity of the case, the man is released from his contract.”
 Implies that there may be an extreme situation where the defence is acceptable
iii. Moral, physical or mental infirmity
- D has to prove that P has some actual moral, physical or mental infirmity  renders
him/ her unfit for marriage
- Must prove that:
o The infirmity was discovered either after the engagement contract had been
made
or
o The infirmity had only begun to develop after the making of the contract
Jefferson v Paskell [1916]

6. INSYIRAH MOHAMAD NOH 2018
UKM LAW SCHOOL
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 P contracted a disease of the chest soon after her engagement  was diagnosed
by the doctor that it’s tuberculosis
 P underwent a treatment but D refused to marry her
iv. Own mental/ physical infirmity
- In Hall v Wright (1859)  Court held that D’s mental & physical infirmity can’t be used
by D as a defence
F. CONSEQUENCES OF A BREACH OF PROMISE
- Damages:
a) General damages: damages for the abstract
 Eg: negligence, defamation, breach of promise to marry
b) Special damages: damages for specific items – may be quantified in monetary
terms
 Eg: Medical expenses, wedding preparations
Berry v Da Costa (1866)
 P left her mother’s house and resided with D (D promised to marry her)
 P accompanied D to Paris  D married another woman
 Court held: P was granted £2,500 damages – includes compensation for the
degradation & misery caused to P
Dennis v Senayah [1963]
Rajeswary & Anor v Balakrishnan & Anor [1958]
Doris Rodrigues v Bala Krishnan [1982]
Pavlicic v Votsberger [1940]
Mr B v Ms T