PROMISE TO MARRY: IMPLICATIONS OF A BREACHED COMMITMENT

Broken promises, in relation to marriage, is a very sensitive issue. It erupts suppressed emotions and resuscitates wounds. All are warranted because we are humans. When you are led on the path of grand expectations, where you imagine and live your future, it is disheartening to get your hopes crashed.

Legally, according to Restatement (Second) of Contracts and Corbin on Contracts; Volume 1, Section 2, a promise is as a declaration or commitment by one person (the promisor) to another person (the promisee) to perform a specific act, provide something of value, or refrain from doing something. Generally, the dynamics of a romantic relationship is regarded a personal and private matter, which does not need poking noses from others, including the courts. However, over time, laws have been enacted to safeguard individuals who may be vulnerable to exploitation in such intimate or familial relationships.

Halsbury’s defines a contract to marry as a contract between a man and a woman by which they mutually promise to marry one another; the promise of each being the consideration for the promise of the other.¹ When one party fails or refuses to honor the contract to marry the other party, the most pivotal question is whether there is a cause of action against the defaulting party.

A breach of promise to marry typically arises when a man and a woman agree to marry, but one party later resiles from the agreement. The breach could be express or implied. It is express, where one party explicitly states their lack of interest, or implied, where their actions or behaviour indicate an unwillingness to proceed with the marriage.

A common question people ask is: If a man has never explicitly stated his intention to marry you, how can you sue him for breach of promise to marry

It is not only when the agreement is express that breach of promise to marry can be actionable. The law is that, the agreement to marry can either be implied or express. It is implied where it can be inferred from the behaviour and actions of the parties towards each other. In the notable case of Ama Serwaa v Gariba Hashimu,² the parties acquired some properties during the subsistence of their relationship. However, the relationship turned sour and the defendant got married to another woman. The Supreme Court stated that, it was clear that the relationship between the parties went beyond mere acquaintances and as such, it would be reasonable to conclude that the plaintiff’s expectation of marriage had a good basis. Inferring from this, it can be concluded that the Supreme Court arrived at its decision based on the behaviour of the parties that there was an agreement to get married in future.

For breach of promise to marry to be actionable, the promise of marriage must not be casual. It must be made in order to create a legally binding contract which can be sued upon. A mere social or romantic expression without clear commitment would not suffice to establish liability. In effect, the promise must constitute an intent by the promisor to create a binding obligation, with clarity and specificity on exactly what is being promised, communicated to the promisee and finally accepted by the promisee explicitly or implicitly.

In an instance where a person fails to carry through a promise of marriage, it is a cognizable wrong; for which the court will give a remedy so far as the promise was seriously made and the plaintiff relied on that promise.3

The breach could either be anticipatory breach or non-performance breach.⁴ Anticipatory breach occurs when one of the parties clearly indicates either through words or actions that they will not fulfill their contractual obligations i.e., where the defaulting party gets married to another person under Ordinance before the performance (marriage ceremony date) is due with the person seeking remedy. Non-performance breach occurs where one party fails to perform their contractual obligations at the time performance is due or performs them improperly.

There is also the question of when a party can file a claim of breach of promise to marry in the courts. Such an action can be brought if one party fails to fulfill the promise within a reasonable time. In the Ghanaian case of Anning v. Kingful [1980] GLR.404 H.C the defendant promised to marry the plaintiff within 3 months after presenting her with a ring and a Bible. However, despite the promise, the marriage did not take place for eight years. The High Court ruled that the defendant was in breach for not marrying the plaintiff within a reasonable timeframe.

In cases of breach of promise to marry, unfortunately, specific performance cannot be granted as a remedy, as damages is the only adequate remedy. The court cannot force someone to marry against their will, as marriage is a voluntary union between two individuals. Therefore, compensation through damages is the only recourse.⁵

It is therefore germane to note that where individuals in a relationship jointly acquire a property, such a property is held in constructive trust by each individual for the benefit of both individuals. If the relationship comes to an end, then it will be shared amongst them.⁶

While it may not be a pleasant reality, it is important to point out that gifts given in anticipation of marriage must be returned if the marriage does not take place. In Kwame Addo v Adjoa Duko⁷, the court ordered the return of a necklace given during the relationship, after the relationship ended. Also, any gifts or items which was intended to be incorporated into the marital home shall be recovered. In the case of Jacobs v. Davis⁸, Shearman J, held that a woman who had broken the contract must return the ring, as it was in effect, a pledge, given upon the understanding that a party breaking the contract must return it. What this also means is that, any gift given which is not in contemplation of marriage is not recoverable by the other party. Once a marriage has been solemnized, the gifts become irrevocably vested and cannot be reclaimed if the marriage later ends.⁹

Despite the above, there are a number of defences available to a person who may be accused of breach of promise to marry. These include fraudulent misrepresentation, mutual withdrawal, bad character, infidelity, insanity and mental or bodily infirmity.

To sum up, while marriage is fundamentally a personal and voluntary union, the law recognises the serious implications of a breach of promise to marry. A breach of such a promise can give rise to legal consequences, primarily in the form of damages, as courts cannot compel individuals to marry against their will.

Keren Naa Ayikaakor Lamptey
Pupil