Civil Family Law - Promise to Marry (Betrothal)

BLS (Hons)/ UiTM

10/27/2013

What is betrothal?

Promise
to
Marry
(Betrothal)
azrin hafiz / BLS (Hons) / october 2013

• An agreement to marry between two parties

* The breach of promise to marry is not
governed by Law Reform (Marriage and
Divorce) Act 1976 (hereinafter will be referred
as LRA)

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Requirements of a valid contract of a
promise to marry

Four elements of betrothal
valid contract ?

Is there any

i.
Offer

If YES, has there been a

breach of contract ?
ii.
Acceptance

If YES, does the defendant have any

defences ?
iii.
Consideration

If NONE, what are the

• One party (offeror) makes a promise to marry
• e.g “would you marry me?”
• The offeree accepts the promise
• e.g “yes, I do”
• Consent of the offeree to marry offeror
• May take the form of an overt action

remedies ?


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Harvey v Johnston [1848] 6 CB 195
Facts:
The df promised to marry the plf within reasonable
time after her arrival at Lisahoppin for the purpose of
marrying the df. She went to Lisahoppin as required
but the df failed to carry on his promise. Df argued
that there was no consideration.
Held:
There was perfectly good consideration as the plf has
moved as requested by the df. The plf entitled for the
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remedies

azrin.hafiz

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iv. Capacity
a. Both parties must be single;

b. The religion of parties does not prevent them
from marrying;

c. Parties should be above the age of 18;

d. If below 21, consent of parents is required; and

e. Parties are not within the prohibited
relationship.

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BLS (Hons)/ UiTM

10/27/2013

a. Both parties must be single

Excp #1: Shaw v Shaw [1954] 2 QB 429

Exception #2

Promise was made
during the period of
decree nisi

Exception #1

When plf can prove
she did not know
that the df was a
married when the
promise was made

Fact

Held

Exception #3

• Mr Shaw represented himself as a widower
and later married plf although the real Mrs
Shaw was alive. Plf found out that their
marriage was illegal and sued for Mr
Shaw’s administrator for breach of contract
to marry

• She was entitled to damages as the
deceased breached the contract to marry

When a man is
permitted to have
plurality of wives
by his personal law
If you making the
promise at the time
where you are not
single, the contract to
marry will be held #General rule
illegal as contrary to
public policy

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Excp #2: Fender v St John Mildway
[1938] AC 1

Promise made after decree nisi obtained by the wife but before decree
absolute. However df broke off the engagement and married another woman,
plf sued him for breach of promise to marry


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What is decree nisi ?
• The order made by the court for divorce, on
satisfactory proof being given in support of a petition
for dissolution of marriage ;
• It remains imperfect for at least six months, (which period may
be shortened by the court down to three,) and then,
unless sufficient cause be shown, it is made absolute on
motion, and the dissolution takes effect subject to appeal.

• Fact
A promise made by df, after a decree nisi for the dissolution of the marriage
has been pronounced, to marry a plf after the decree has been made absolute
is not void as being against public policy, and an action for damages for
breach of the promise is maintainable by the plf.

Source - http://thelawdictionary.org/decree-nisi/

• Held

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Excp #3: Nafsiah v Abdul Majid
(No. 2) [1969] 2 MLJ 175
Remember!!!

• Islamic law allows a man to have 2, 3 or 4 wives at
one time

Fact

Held

Thus after this amendment, the civil
court would not have jurisdiction to
hear the cases of breach of promise to
marry between Muslim parties

• Court declined to accept df’s argument
and relied on his personal law which
allowing him to marry more than one.
Thus promise was valid and damages
granted to plf

azrin.hafiz

Nafsiah’s case was decided in 1969,
prior to the amendment of Art
121(1A) of the Federal Constitution.

• Plf sued for damages for breach of
contract to marry. Parties were Muslims.
Counsel for df relied on the #general
rule of law

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BLS (Hons)/ UiTM

10/27/2013

b. The religion of parties does not
prevent them from marrying
Recall!!!
Case

• Mary Joseph
Arokiasamy v
Sundram
[1938] MLJ 4

Fact
• A Hindu man
promised to marry a
Christian girl and
she was being
informed that his
wife had died.
However he
breached his
promise.

Held
• There was no
religious
impediment against
a Hindu man
marrying a Christian
girl . The promise
was therefore valid
and enforceable.

Section 10(1) of Islamic Family Law
(Federal Territories) Act 1984*:
No man shall marry a non-Muslim except a
kitabiyyah
* On the issue, where one party is a Muslim


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c. Parties should be above the age
of 18
• LRA is silent on permitted age to enter into the
contract to marry.
• Under Sect 10 of LRA, the age of marriage:
Girl – 16 years
(after the solemnization of marriage was authorized by Chief
Minister)


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Indian case:

Rajeswary v Balakrishnan
[1958] MC 178

Fact:
The plf, a girl, had entered into
contract to marry when she was
still a minor. The df breached the
contract and she sued for damages.

However, in Malaysia,
the
parties
are
subjected to Sect. 11 of
Contracts Act 1950,
where the parties to
contract must be at the
age of majority.

Held:

Boy – 18 years

Minor could enter into valid contract
to marry

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d. If below 21, consent of parents
is required
By virtue of Sect 12 of LRA, the written consent is
required:

Illegitimate / father is dead

Parents are dead

e. Parties are not within the
prohibited relationship.
By virtue of Sect 11 of LRA, e.g. grandparent,
parent, sister, uncle, etc.
Sect 11(1) of LRA provides that a person who
is Hindu, can marry in accordance with Hindu
custom, his sister’s daughter (niece) or her
mother’s brother (uncle).

• mother
• Father or mother, if father is dead
• A person standing in loco parentis


azrin.hafiz

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• father

Biological

Adopted


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BLS (Hons)/ UiTM

10/27/2013

If there is a valid contract, has there been
a breach of that contract?
The action of breach of betrothal will be lied against the
defaulted party disregard a man or woman
Case

Fact

• Frost v
Knight
(1872) LR 7
Exch III

Held

• Df promised to
marry plf after
his father die.
But later,
before the
death, he has
cancelled the
promised.

• Plf can bring
action for the
breach and no
need to wait
until his father
death. It is
called as
anticipatory
breach


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Defences

d)
Df’s own
mental /
physical
infirmity

You have to prove that there is a total reliance
to information given.


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Fact

Held

• Wharton v
Lewis (1824) 1

• The plf’s brother
came into the picture
and said that the plf’s
father would leave
his property to the
plf upon his death. It
was subsequently
discovered that the
plf had in fact been
leading a
questionable life.

• There was no
reliance towards the
information given to
him as he madly in
love with the plf. He
not bothered with the
false information.
Thus the court
decided in favour of
the plf.

azrin.hafiz


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b) Contract to marry is not a
contract of uberrimei fidei

Case


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e.g
If a person telling you he is a CEO in a multi
million profit company, but it is later found out
that, he is merely a clerk.

c)
Plf’s own moral physical / mental
infirmity

C & P 529


a) Misrepresentation of fact

a)
Misrepresentation of fact

b)
Contract to
marry is not a
contract of
uberrimei
fidei

If there is a breach, does
defendant have any defences?

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Contract of uberrimei fidei is where a party has
to disclose to the other all relevant facts and
information.
For the purpose of this defence, the parties
are not required to inform everything
between them.

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BLS (Hons)/ UiTM

10/27/2013

c) Plf’s own moral physical / mental
infirmity
• Beachey
v Brown
(1860) EB & E
796

Case

Fact
• Df raised the
defence that he
would not have
agreed to marry
the plf if he knew
that she had
made a promise
to marry
someone else.

• As the contract to
marry is not a
contract of
uberrimei fidei,
the court rejected
df argument and
gave judgment to
plf

or only had
begun to develop
after the making
of the contract

which renders the
plf unfit for the
marriage

Held

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d) Df’s own mental / physical
infirmity

Case

Fact

Held

• Jefferson
v Paskell

• The plf contracted a
chest disease soon after
her engagement. She
thought it was mere
chill, but it was
diagnosed tuberculosis.
She was not ready and
unfit for the marriage. It
was found out that the
illness was not
tuberculosis. But df still
refused to marry plf.

• Damages granted to plf
as the df failed to prove
that he honestly and
reasonably believed the
plf to be unfit to
marriage.

[1916] 1 KB 57

The infirmity was
discovered after
the engagement
contract

Df used this infirmity to break the engagement ,
this will not be considered as defence.
Case

•

Hall v Wright [1859] EB & E 765

Fact
Held

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• Df had pleaded that his own supervening ill-health
would endanger his life and marriage excitement.
• Df’s own infirmity is not a defence in an action of
breach of promise to marry

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a. Damages
i. General damages
- Damages for abstract i.e
breach of promise to marry.

If NONE (defence), what
are the remedies available?


azrin.hafiz

- In assessing the proper
amount, the judges are not
limited to mere pecuniary
loss, but may take into
account the injured feelings
and wounded price of
aggrieved party.
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ii. Special damages
- Something that can be
quantified in monetary
terms.
- E.g damages for wedding
preparations, catering, house
renovation cost etc.


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BLS (Hons)/ UiTM

10/27/2013

Dennis v Sennyah [1963] MLJ 95

b. Return of gifts

Fact:
As a result of breach of promise to marry, plf had to endure
humiliation and mental anguish. She had incurred expenses to
the amount of RM 870 and wish to claim both damages.

• Only the wrongful party should return the gift
to aggrieved party.

Held:
the judge take into account the plf’s future prospect of
marriage and her father’s standing in community. General
damages and special damages amounting to RM1500 and RM
620 were respectively awarded


Principles laid down by McCardie J in

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Cohen v


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Reference:

Stellar [1926] 1 KB 536

Nuraisyah Chua Abdullah, Family law for nonMuslims in Malaysia, ILBS, Petaling Jaya:
Selangor (2006)

If a woman whom received the gift, but
refused to fulfill the conditions, she must
return it.
If a man without legal justification,
refused to carry out his promise, he cannot
demand for the return of gift.

Law Reform (Marriage and Divorce) Act 1976
– Act 164

If betrothal to be dissolved by mutual consent,
the parties must return the gifts to each other.


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Thank you for your
attention
prepared by:
Azrin Hafiz
Bachelor of Legal Studies (Hons) student
Faculty of Law
Universiti Teknologi MARA
MALAYSIA

azrin.hafiz

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Civil Family Law - Promise to Marry (Betrothal)

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