Introduction

More often than not, promises made in the heat of the moment should be taken with a pinch of salt. Breaching such promises may not have dire consequences. The repercussions of broken promises pertaining to marriage, however, may be actionable in court. In this paper, the complexities of such breaches are examined.

In the context of marriage, a promise may be express or implied. A promise is deemed express when a proposal is made and accepted; simpliciter. Proving the verbal exchange of promises may require subsequent conduct consistent with the said promise. Conversely, a promise is implied where the agreement is inferred from the behaviour of the parties towards each other or from the giving and acceptance of an engagement ring.

In some instances, promises may be conditional, in which case there must be evidence of the non-fulfilment of the condition before an action can be maintained. In the 1928 case of KWAME ADDO V ADJOA DUKO, the promise was conditional. A breach was occasioned when Ms Adjoa Doku failed to fulfil her part of the promise.

Breach of promise to marry is an actionable tort under Customary law and Common law. It refers to a legal claim where one party alleges that the other has failed to fulfil a promise to marry, resulting in emotional distress or other damages. In an article by PROF. HENRIETTA MENSA-BONSU (MRS.) JSC she stated that

Historically, there were two (2) main grounds for instituting an action for Breach of Promise to marry under Common Law;

1. The financial standing of women was formerly entirely dependent on marriage; as a result, breaking a serious vow to marry a woman would not only be emotionally devastating but would also have had a long-term economic impact.

2. Women were also required to remain chaste until marriage. When a man promised to marry a woman, it was believed that the woman was very likely to preserve her virginity as she awaited the fulfilment of the promise made to her. Thus, there was a need to prevent men from taking undue advantage of women by breaching their promise to marry without reasonable cause.(3)

Lawsuits related to a Breach of Promise to marry have become more prevalent because of increased awareness of their right to claim damages. As societal expectations change, legal systems have also adapted to address new perspectives and challenges in interpersonal relationships.

Types of Breach of Promise to Marry

There are two types of breaches: Anticipatory breach and Non-performance breach.

Anticipatory breach is occasioned when the parties agree to marry at a specific time or upon the occurrence of a particular event. If one of the parties withdraws from the agreement before the date of the marriage or before the occurrence of the event, the party withdrawing will be in anticipatory breach. When this occurs, the law permits the injured party to sue the party in breach for damages without waiting for the due date or event occurrence.

A non-performance breach, on the other hand, is said to have taken place when the due date lapses or the event occurs, and either party fails or refuses to make good his/her promise. In the case of AFRIFA V. CLASS-PETER , Afrifa, an Ashanti businessman, proposed marriage to a Ga school mistress Class-Peter, who consented. They lived together, and in anticipation of the marriage ceremony, Class Peter gave up her employment. Afrifa set several dates for the wedding, but each was postponed. Afrifa flirted with other women and had a child with one of the said women. Eventually, Class-Peter caught him in the arms of another woman and subsequently sued Afrifa for breach of promise to marry. Class-Peter was awarded damages as Afrifa failed to fulfil his promise, leading to a non-performance breach. In ANNING V KINGFUL , it was held that, an agreement to marry is an agreement to marry within a reasonable time.

In the case of AMA SERWAA V. GARIBA HASHIMU AND ISSAKA HASHIMU as well, the court, speaking through Prof Mensa-Bonsu (Mrs.) JSC stated:

Elements Of Breach of Promise to Marry

There must be an exchange of promises. The promise may be conditional, in which case there must be evidence of fulfilling the condition before an action for the breach would lie. Where there is a general promise of marriage, an intention to perform within a reasonable time would be imputed.(7)

It must be noted that a promise given to a minor or even a married person is null and void. In order to establish legally enforceable relationships, promises must be made by and to individuals with full legal capacity.

Additionally, consideration must be passed from one party to another to be legally valid and enforceable. The evidence of consideration is the basis for establishing the existence of a contract. In a promise to marry, the reciprocal promise of a woman to marry a man who promised to marry her is usually regarded as consideration.

Damages

The courts make haste slowly when awarding damages for a breach of promise to marry. They take into account the financial position of each individual before the promise to marry, an estimated projection of how the marriage would have financially be affected by each party, and the financial and social standing of the defendant, which would provide an estimate of the lifestyle the plaintiff would have enjoyed.

The court would also consider physical intimacy, such as pregnancies or children between the parties, emotional distress, loss of social standing, loss of future income, and loss of virginity. In the case of DONKOR V. ANKRAH, the court held that where a man withdraws from an agreement to marry a woman who has had a child for him, he will be ordered to pay damages to her because she may be less attractive to other men, having already had a child.

Defences to Breach of Promise to Marry

There are several defences in law to an action for breach of promise to marry, which would otherwise negate the breach and deny the injured party a remedy in law. These include:

1. Where the injured party fraudulently persuaded the other party to enter into the agreement. For instance, where the person bringing the action misrepresented to the other that he or she was not married when, in truth, he or she was married when the promise was made, it will be an excellent defence to an action of breach of promise to marry.

2. A later discovery of the existence of extreme/bad character on the part of the person bringing the action.

3. A mutual agreement by the parties to resile from the agreement.

4. Insanity on the part of the person bringing the action.

5. Infidelity.

6. Lack of capacity to enter into a binding agreement

7. Bodily infirmity, which would undoubtedly render such party unable to perform his or her part of the agreement and other similar factors.

Conclusion

The phenomenon of being in love is closely joined to making promises. These promises are made to prove one's love and to reassure the other party that they will stay with them through thick and thin. Whether these promises are intended to be legally binding is for the courts to decide. The season of love is upon us; many may be tempted to make extravagant promises. One must, however, be careful not to make any promise that could fall into the ambit of Breach of Promise to marry. To be forewarned is to be forearmed.