Breach Of Agreement To Marry: The Legal Remedies Available To An innocent Party -By Ekenobi ThankGod Chinonso

INTRODUCTION

Marriage is a serious lifetime commitment, it usually begins in a friendship between two people of the opposite sexes, then exchange of promises between the two friends to marry each other in future, and these promises in most cases materialize and eventually result in a marriage between these two persons.

However, there have been several instances where people go into long term serious relationships, invest their all into the relationship on the anticipation that such relationship will eventually lead to marriage, but alas!, for one reason or another the relationship breaks down along the way leaving such person heartbroken, after investing huge sums of money, genuine feelings and emotions, dropping out of school just to be with the lover, leaving family and friends to be with the lover, turning down other suitors on the positive hope of marriage, etc.

These breakdown of long-term relationships have resulted in several retaliatory actions, perpetual malice, demand for refund of money, goods and properties transferred¹, eviction from residence paid for by jilted lover, suicide after killing the ex lover by the jilted lover², public disgrace and humiliation of ex lover by the jilted lover³, pouring of boiled water on the ex lover by the injured party, bathing the ex lover with an acid, amongst other unpleasant reactions. These underscores the need to have a legal framework to regulate and guide the conducts of parties in a romantic relationship, and ensure each party is fully aware of the implications his/her actions, words and agreements in a relationship, and to also provide remedy to an injured party, by restoring him or her to the position he or she was before going into the relationship.

This article examines the rights of a person who has been promised marriage, and remedies available to such Person in the event where the other person reneges on the marriage.

AGREEMENT TO MARRY: DEFINITION, NATURE.

Marriage has been defined as “the legal union of a couple as spouses; the essential elements of a valid marriage are 1. parties legally capable of contracting to marry, 2. Mutual consent or Agreement, and 3. an actual contracting in the form prescribed by Law⁴. It has also been defined as a legally recognized Union between a matured Man and Woman, who have contracted to spend the rest of their lives together as husband and wife under the matrimonial Causes Act, Customary Law, or under Islamic Law⁵. Agreement on the other hand, has been defined as “1. A mutual understanding between two or more persons about their relative rights and duties regarding past or future performances; a manifestation of mutual assent by two or more persons. 2. The parties actual bargain as found in their language or by implication from other circumstances, including course of dealing, usage of trade, and course of performance”⁶.

Agreement to marry (also known as promise to marry) has been defined as ” A betrothal; an engagement to be Married⁷. This occurs where two people mutually undertake to marry each other in future, hence bringing into being an enforceable contractual agreement between the two. Just like Commercial contracts, an agreement to marry may be written, oral, express, or it may be implied from the conduct of the parties. According to Niki Tobi JSC “While the law may at times require that an agreement to marry should be in writing, the law will be prepared to hold, in appropriate cases, that the parties intended to marry in the absence of any written agreement. In this respect, the court will take into consideration the institution of marriage as a trade in the relevant society and how persons generally engage themselves in agreement of marriage. In this regard, the law will be more stringent in agreement to enter into marriage under the Matrimonial Causes Act and to some extent under Islamic Law than agreement to enter into marriage under customary law”⁸. Whichever form it takes, such agreement must be clear, unconditional, unequivocal, devoid of any ambiguities and obscurities; such parties must have agreed voluntarily without any form of duress, misrepresentation, fraud, devoid of any form of incapacity or intoxication on the side of any of the parties, there must be assentio mentium (mutual assent) or consensus ad idem (meeting of the minds), hence the parties must not have been acting under any form of mistake or misunderstanding i.e one or more of the parties must not have entered into the contract under a mistaken belief as to the existence of certain state of things, and there must be a clear and definite agreement by both parties to the effect that marriage will be the eventual destination of their relationship. Mere deceptive words which some guys use to get to a girls pants, words like “you are the one I will love to spend the rest of my life with” or “I love you more than my mother and father” or ” you are more beautiful than Beyonce, I will never leave you” or ” you are my one and only” are not enough to create a binding agreement to marry, there must be clear, positive and definite agreement between the parties to marry each other. As was stated by Niki Tobi JSC ” Marriage is regarded as a very sacred institution both in our jurisprudence and in our sociology. Accordingly an agreement to enter into a marriage should leave nobody in doubt as to the real intention of the parties to enter into a marriage. A mere convivial or romantic relationship without more is not enough for a court to found an agreement to marry”⁹. The premium the society places on marriage is so high that it would be injurious to public interest if every romantic statements made by one person to the other would be construed to mean a promise to Marry, certain external features are required to prove it. It must involve the elements of a valid contractual agreement such a an offer by one party (offeror) to another (offeree) undertaking to be bound by it if accepted by the offeree; followed by an acceptance by the offeree on the same terms proposed by the offeror devoid of any modifications; then consideration by both parties which could be in the form of exchange of promises by both parties or exchange of rings, or other valuable considerations moving from both parties and such considerations need not be sufficient but must be of value in the eyes of the Law; there must also be an intention by the parties to be bound by their undertaking and for such agreements to be enforceable in Law, so mere exchange of “I love you” “I love you too” is not enough to create an intention to marry, there must be an intention to be bound; lastly, the parties must be free from all forms of disabilities capable of voiding or making voidable their agreement, for instance the parties must be old enough to enter into such agreement, the parties must not be acting under any form of mental impairment or intoxication,  etc. These elements must be available before a valid and enforceable agreement can be inferred, the absence of any of these elements affects the validity of such agreement.

BURDEN OF PROVING THE EXISTENCE OF AN AGREEMENT TO MARRY

Like in all other contractual cases, the burden of proving in Court the existence of a Marriage agreement rests on the party who brings the claim (plaintiff/claimant) to prove that there’s in actual and legal sense the existence of a Marriage agreement between the parties. This is in accordance with the ancient Latin maxim that goes ” onus probandi incumbit ei qui dicit, non ei qui negat” the burden of proof rests on him who affirms, not on him who denies. Such burden of proof must be discharged on a balance of probabilities, by adducing evidence to prove the existence of a Marriage agreement between them, it could be through the presentation of written agreement between both parties promising to marry each other, or by producing engagement rings exchanged by both parties as a symbol of their undertaking to marry, and also by calling witnesses who were witnesses to the engagement, in some cases even pregnancy may be considered as an evidence of the intention of the parties to marry¹⁰. Merely asserting that there was an agreement between the both parties is not itself a cogent evidence of the existence of a Marriage agreement, there must be some external indications which must point to and be consistent with the promise to marry, Section 197 Evidence Act 2011¹¹ provides that such evidence must be corroborated by documentary evidence, but this excludes unreplied letters from the plaintiff seeking to get defendant’s affirmation on the existence of a marriage promise. In the case of Aiyede vs Norman –William (1960) LLR 253, the Court held that such agreement need not take verbal or written form, hence it may be by the conduct of the parties, an example could be a situation where two persons have cohabited for a long time and have even had child(ren) together.  Hence the party claiming the existence of an agreement to marry must prove to the satisfaction of the Court the existence of such agreement, and that the two parties were deliberate, had full legal capacities, and were not under any form of compulsion, incapacitation, intoxication, misrepresentation, fraud and other vitiating elements at the time the purported agreement was entered into. Only after this burden of proof has been discharged on a scale of probabilities, will the burden shift to the defendant to disprove or rebut the existence of any such agreement between them in accordance with the principle of “Audi alteram partem”. The court will only be guilded by the weight of evidence adduced by the parties, and will tilt towards the party who has presented a more cogent and compelling evidence. Hence where the plaintiff proves to the satisfaction of the Court, the existence of a Marriage agreement between them judgment will be given in favour of the plaintiff and damages will naturally flow, where however the plaintiff fails to adduce sufficient proof to support such claims, the the case will be dismissed for want of sufficient proof.

AT WHAT POINT CAN A BREACH OF AN AGREEMENT TO MARRY BE SAID TO HAVE OCCURED?

A breach of agreement to marry occurs when a party to the marriage agreement indicates through words, in writing, or by his/her conduct that he or she will no longer go on with the marriage arrangements for no just reasons. Breach can take the form of verbal communication, such as when a party makes it clear to the other party through verbal communication that he or she do not intend to proceed further with the marriage arrangements, or where such party communicates same to the plaintiff through a reliable third party to the effect that he or she is backing out of the marriage arrangements. Another manner through which breach can occur is through letters written under the handwriting of the defendant stating that he/she does not wish to continue with the marriage plans. It may also be inferred through the conduct of the defendant, such as where the defendant fails to show up at the venue of the marriage on the day of the wedding, or where the defendant continues to postpone the marriage for no reasonable justification, or where the defendant marries another person other than the plaintiff before the proposed date of marriage¹². The jilted party can then sue straightaway for breach of agreement to marry or promise to marry, and damages will be awarded if sufficient evidence was furnished to prove the existence of an agreement between the two¹³, the plaintiff may equally sue a third party who had induced the defendant to engage in the breach, for instance where a Man induces a lady who to his knowledge has been betrothed to another man to leave her betrothed and marry him, while the other person has not withdrawn the engagement, nor conducted himself in a manner which expressly or impliedly suggest they have broken up, such an injured party may bring an action against the inducer and claim damages. There are two types of breach of agreement to marry: 1. Non-performance: this occurs where the date fixed for the marriage became due but one party to the marriage agreement begins to conduct himself in a manner tending to suggest he or she no longer wishes to go ahead, and then calls off the marriage arrangements even after monies has been spent. 2. Anticipatory breach: this occurs where a date is fixed for the marriage but just before the due date, one of the parties suddenly declares that he or she no longer wishes to proceed with the marriage, or where the party makes it difficult for the agreement to be performed by putting himself in a position that would make it difficult for him/her to perform his or her own part of the promise, by marrying or eloping with another person other than the plaintiff, in the case of Uso v Iketubosin [1975] WRNLR 187, the two parties agreed in 1947 to marry each other, however the defendant in 1957 married another woman thereby jilting the plaintiff, the Court held him liable for breach of promise to marry. Also in Adenugba v Martins¹⁴, the defendant was held liable for breach of Agreement to marry, for misleading the appellant to believe they were married while in actual fact they were not.

Also, where no specific date is fixed for the performance of the marriage agreement, such must be done within a reasonable time, or at the request of one of the parties, where however the other party continues to postpone the marriage over and over again by giving flimsy reasons, hence indicating by conduct that he or she may not perform his/her part, the other party may be entitled to sue for breach in appropriate cases.

DEFENSES TO AN ACTION FOR BREACH OF AGREEMENT TO MARRY.

1. Fraud: this can be a defense to an action for breach of promise to marry, where one party fraudulently obtains the promise of another by fraudulently concealing certain material facts about the plaintiff, which if the defendant had known about the secret, would not have entered into such promise.
2. Misrepresentation: Where one party induces another to enter into an agreement to marry, by misleading such person to believe in the existence of certain state of affairs which the misrepresenter has every reason to believe was not true, such as where the plaintiff lures the defendant into an agreement by presenting him/herself to be whom the plaintiff is not, the defendant can raise it as a defense. In Wharton v Lewis¹⁵, the plaintiff induced the defendant to enter into a marriage agreement with her on the belief that her father would leave behind some wealth for her, contrary to her claim her father had entered into an agreement with his creditors thereby gave up the property to offset his debts, the Court held in that case that the defense of fraudulent misrepresentation availed the defendant.
3. Moral deficiency: this defense will avail a defendant where he can show that the plaintiff lacks good moral qualities and quality home training. For example, where the plaintiff engages in immoral acts such as stealing, promiscuous lifestyle, lacks good manners, always fighting with the defendant, is a lesbian or homosexual (as the case may be).
4. Where the plaintiff is pregnant for another Man other than the defendant.
5. Where the defendant is already married and the plaintiff is fully aware of that, but either waiting for the defendant to obtain a divorce from the lawfully wedded spouse. Where however, unknown to the plaintiff the defendant was already married, action for breach of Agreement to marry will avail the plaintiff.
6. Where the defendant was under the influence of alcohol when the promise was made, and such intoxication was of such nature as to substantially affect the defendant’s brain, and the plaintiff was aware of it yet took advantage of the defendant’s drunk state to obtain the defendant’s agreement.
7. Where there is a condition precedent to the performance of the promise, for example where the promise is subject to the happening of certain events, and until such event occurs, such promise is not enforceable. In Aiyede v Norman Williams¹⁶, the defendant promised to marry the plaintiff subject to his obtaining consent from his father, however due to failure to obtain such consent, he proceeded to marry another woman, according to Coker J ” Where the promise is only to be carried into effect on or after the happening of a certain contingency that contingency must happen before the promise becomes actionable. The promisee is however entitled to sue as on the breach of an executory contract where the promissor does any act whereby he would be incapable of performing the contract if and when the agreed contingency arrives”. Hence the action was dismissed due to the failure of the condition precedent being fulfilled which in this case, was the consent of the defendant’s father.
8. Also where the defendant postpones the marriage for justifiable reason, for instance due to lack of finances to sponsor the marriage, that will also be a good defense, however such delay must not be unreasonably and unjustifiably long.
9. Where the defendant was a minor at the time the agreement was made, such agreement cannot be enforceable against the minor, however the minor may enforce it against an adult, but where the minor ratifies such agreement at a reasonable time upon attaining the age of major, it becomes enforceable against him/her.
10. Insanity: this can also be a defense, for instance where the plaintiff is suffering from some mental impairment which would render him/her unfit for the marriage without the defendant’s knowledge abinitio, such defense may avail the defendant. However, where there’s evidence the that defendant was aware of the plaintiff’s mental state, yet went ahead to make the agreement, the defendant will be bound by such agreement.
11. Release or Discharge: where the plaintiff discharges the defendant from the performance of his obligation before the proposed time of performance, such discharge shall constitute a defense to an action for breach of Agreement to marry.
12. Frustration: Where for instance supervening events which the parties could not reasonably have contemplated occurs, hence rendering the plaintiff permanently unfit for marriage, it shall be a defense. Where however, the incapacity is a temporary one, or one that can be managed or remedied, then such defense shall not avail the defendant¹⁷.
13. Where it is shown that the plaintiff is hot tempered and is a very violent person, hence keeping him/her as a spouse will put the life of the defendant to a grave risk due to the plaintiff’s violent nature, then the defendant may use that as a defense in an action for breach of agreement to marry.
14. Affinity and consanguinity: this can equally be a defense, as marriage between persons of such class is prohibited under our various marriage laws.

DAMAGES FOR BREACH OF AGREEMENT TO MARRY

Where the Court finds that indeed a breach of Agreement to marry had occurred, the Court will naturally award damages, this is in accordance with the ancient Latin maxim “Ubi Jus Ibi Remedium” where there’s a legal right there’s a remedy, the essence of awarding such damages is to restore the injured party to the position he/she was before the agreement was made. Though such damages in most cases might not be sufficient to make up for the loss incurred by the injured party, but the essence is to as much as possible restore that party at least closer to the position he or she was before the agreement. However, the Court would never order specific performance as that would amount to commanding the impossible, and it won’t be fair to impose on a defendant a spouse towards whom he/she has shown unwillingness to live with, that would be injurious to public interest. These damages however, are subject to the doctrine of remoteness; in other words the damages to be awarded must be that which naturally flow from the breach and that which was within the contemplation of the parties as possible damages for breach at the time they were making the promise.

There are usually two types of damages the Court will award vis: Special Damages, General Damages.

Special Damages: these are damages which cover expenses the innocent party must have incurred while pursuing the marriage preparations, these include monies Paid for wedding gown, wedding suit, wedding rings, purchase of drinks and food items in preparation for the marriage, expenses incurred on travels pursuant to the wedding preparations, monies spent sowing clothes for bridesmaids and bestmen, money paid to hire event hall for the proposed wedding, properties acquired in favour of the defendant in consideration of marriage, monies invested in the defendant’s Personal business pursuant to the agreement to marry, etc. In addition, rings exchanged pursuant to the ill-fated marriage agreement must be returned¹⁸.

General Damages: these are damages which would cover for other privileges, opportunities, prospects etc, the innocent party must have lost or missed while honestly relying on the unperformed promises. For instance the loss of potential suitors whom the plaintiff might have turned down while relying on the promise, also the lost privilege of being called a Mr or Mrs plus the prestige it would have accrued to the plaintiff had the marriage taken place, or loss of Job opportunities or some other life transforming opportunities the plaintiff must have missed while relying on the promise. Also, emotional trauma and heartbreak resulting from such breach will also be put to consideration in awarding damages. Lastly, the stigma and disdain the plaintiff might in some societies be subjected to owing to such failure of marriage taking place, in addition, damages to personal and family reputation will equally be considered in awarding general Damages.

However, as has been stated earlier the court will never order specific performance as that would amount to commanding to be done what is impossible as that would be tantamount to imposing an unwanted partner on an unwilling spouse.

As regards gifts received from third parties, such gifts are returnable to such third parties at their request, where however the donor third-party makes it clear that he does not need want his gifts back, such gifts it is submitted, should be treated as co-owned properties acquired during the pendency of the relationship. Though some people have suggested that such gifts should be given to the party for whose sake the gift was given.

There has been clamour in different countries for the abolishment of this cause of action, however no country to the knowledge of the writer has entirely abolished it, as what we have are deliberate efforts in some countries to limit the scope and damages through legislations, but calls for its abolishment has not really gained so much momentum¹⁹, as this agelong and rather controversial cause of action still subsist having scaled several challenges and oppositions.

 

CONCLUSION

The value our society places on marriage is so high, and as such issues relating to marriage and other sort of romantic relationship are held in high premium and our laws guards same jealously and makes Provisions for ensuring that such relationship is accorded the respect it deserve. Moreover, an agreement between two persons to do or refrain from doing certain things is viewed as a superior Law which is to be given effect, as goes the ancient Latin maxim ” Conventio et modus vincunt legem” meaning a contract and agreement overcomes the Law, so where two parties agree on a thing, the law will hold each strictly to his/her bargain, and any breach of such promise will not slide without a legal consequence. Hence, where persons of full legal capacity enter into an agreement, the law expects each to fulfill his/her own part, where however a party chooses to deliberately breach the agreement, liabilities are sure to follow. So in the event your lover who promised you Marriage eventually breaches the agreement you both undertook, rather than take the laws into your hands by pouring on him hot water, disrupting his/her wedding with another person, stripping her naked in public, sending criminals to brutalize him/her, killing him/her and subsequently committing suicide or even facing capital punishments. Just Sue that person to Court!

 

 

 

 

References/Authorities

1. http://saharareporters.com/2020/06/01/ex-boyfriend-new-wife-nigeria%E2%80%99s-customs-service-boss-hammed-ali-demands-refund-all-monies > accessed on October 16th 2020.
2. https://www.lindaikejisblog.com/2020/9/jilted-taxi-driver-commits-suicide-after-killing-girlfriend-who-dumped-him.html > Accessed on October 16th 2020.
3. https://www.lindaikejisblog.com/2019/9/bride-collapses-as-grooms-jilted-ex-lover-storms-their-wedding-in-edo-photos.html > Accessed on October 16th 2020.
4. Black’s Law Dictionary (Bryan A. Garner), tenth edition, p.1117.
5. HYDE V. HYDE {L.R.} 1 P. & D. 130.
6. Black’s Law Dictionary, 10th edition, p.81.
7. ibid. p.1407.
8. MISS CHINYE M. EZEANAH VS MAHMOUD I.A. ATTAH (2004) LCN/3258(SC).
9. ibid.
10. Chinedu Innocent Nwobodo, breach of promise to marry in Nigeria: what you need to know, Available at< https://thenigerianlawyer.com/breach-of-promise-to-marry-in-nigeria-what-you-need-to-know-by-chinedu-innocent-nwobodo/ > accessed on October 16 2020.
11. Lambe v. Jolayemi (2002) 13 NWLR (Pt. 784) Pg. 356 Paras. E – G
12. Theophilus Orumor, the breach of promise to marry and its legal consequences, Available at < https://m.guardian.ng/features/the-breach-of-promise-to-marry-and-its-legal-consequences/amp/> accessed on October 17th 2020.
13. Uso v Iketubosin [1975] WRNLR 187 .
14. (1946) 18 NLR 63.
15. (1824) I C & P 529, 171 ER 1303.
16. (1960) ALL 253

17.https://www.lawreform.ie/_fileupload/consultation%20papers/wpBreachofPromise.htm> accessed on October 17th 2020.

18. http://olayidedara.blogspot.com/2016/12/the-concept-of-breach-of-promise-to.html?m=1> accessed on October 17th 2020.

19 ://www.lawreform.ie/_fileupload/consultation%20papers/wpBreachofPromise.htm> accessed on October 17th 2020.

              About the writer

Ekenobi ThankGod Chinonso is a 200 level Student at the faculty of Law, Ahmadu Bello University Zaria, Kaduna State, Nigeria.

Email: [email protected].

 Phone number: 07067942565.

LinkedIn: https://www.linkedin.com/in/ekenobi-thankgod-chinonso-a4a1821aa.

     DISCLAIMER

The views expressed in this article represents the writer’s own opinion, and may not necessary reflect the position of the law with regards to the issue discussed. This article does not create a lawyer/client relationship between the author and reader, hence you are advised to seek the advice of a professional lawyer for legal. Thank you!