Critical Analysis of Issues Arising from Contract to Marry.

Abstract

The provided research delves into the legal aspects surrounding the concept of a “contract to marry” in Nigeria, covering key elements such as marriage, breach of promise to marry, and related issues like single status, infancy, condition precedent, parental consent, and proof of breach. It emphasizes the importance of considering these factors before entering into a marriage contract, to avoid legal complications. The breach of promise to marry is discussed, highlighting scenarios of non-performance and anticipatory breaches. Additionally, the research addresses the burden of proof required in cases of breach of contract to marry, emphasizing the need for substantial evidence to support claims. Remedies for breach are also outlined, indicating that plaintiffs can seek special or general damages. The research provides a comprehensive overview of the legal intricacies surrounding promise to marry and its implications in Nigerian law. The research adopts doctrinal methodology to explore the issues arising from contract to marry.

INTRODUCTION

By nature, there is always an attraction between opposite sex. A man and a woman who are affectionate towards each other, may nurse the desire to end up together as husband and wife in future. Most often, parties may promise to marry each other, however there are instances where either of the parties may breach the promise to marry.

Thus ensuing issues such as whether or not the parties have the capacity to enter into such agreement, whether or not the consent of parents is sacrosanct, whether or not the party has valid status – (single status) to enter into such contract to marry, the breach and proof of the breach, etc., may arise.

Definition of Terms.

For a proper understanding of the topic, it is expedient that we start with the legal definitions of key concepts: marriage, breach, remedies, promise of marriage, contract to marry.

Marriage: The Black’s Law Dictionary defines marriage as the civil status of one man and one woman united in law for life, with the purpose of carrying out the legal obligations owed to each other and the community by people whose relationship is based on sex distinction.^[1] In Hyde v Hyde[2] ^[3]Marriage is defined as the voluntary union for the life of one man and one woman, to the exclusion of all others.

Breach: Black’s Law Dictionary states that a party is considered to have breached a contract if he fails to carry out his end of the bargain, informs the other party that he won’t carry out his end of the bargain, or gives the impression through his behaviour and actions that he won’t be able to do so.

Remedies: According to Etymology, remedies are the legal means to recover rights or to prevent or obtain redress for wrongs.

Promise of marriage: A mutual agreement between a man and a woman to marry one another is known as a promise of marriage. It is only created when the parties exchange commitments to marry each other and can also be seen of as a betrothal or agreement to get married.³ A breach of promise to marry may be defined as the promisor’s failure to marry the promisee without a valid reason given by law.

Contract to marry: A mutual agreement and consent between a man and a woman to be married at a later time is called a contract to marry. There must be nothing stopping or preventing the two of them from getting married. A contract to marry is also known as a betrothal, which is a pledge made by one person to another to get married at a later time. Both parties must be committed to living together as husband and wife. A marriage contract can be established verbally or in writing. When a marriage contract is made verbally, the parties’ actions might be used as evidence of their commitment to one another. Additionally, a marriage contract might be determined by the parties’ contact with one another.

In  Obasawa v. Ibodiaran,[4] a promise to marry may be made in connection with a statutory marriage or a marriage under the Marriage Act. It may also pertain to marriage as defined by islamic and customary law. In Atta v. Ezeanah, Niki Tobi JSC defined promise to marry as a bilateral affair between a man and a woman, both parties must be ad idem in respect of any collateral transaction relating to the intended marriage, and breach of that promise is enforceable against the person in default.

In light of the foregoing, we shall consider potential problems and issues that may arise in a contract of marriage.

1. Single Status of the Parties

A party must be single and unmarried to a third party in order to be eligible to marry. Section 39 of the marriage act make it an offence punishable with a term of imprisonment for a person who marries another person whom he/she know to be married. Section 39 of Marriage Act provides thus:

Whoever, being unmarried, goes through the ceremony of marriage under this Act with a person whom he or she knows to be married to another person, shall be liable to imprisonment for five years

In the English case of Wilson v. Carnley[5] the court of appeals established the general principles that a marriage contract to which a married person is a party is against public policy and morals; consequently, a marriage contract with a married party is null and void. According to the court, upholding, public policy and morality is the key reason for nullifying marriage agreement in which a married person is a party. Here, public policy and interest is a key factor.

In Fender v. St. John Mildmay[6], Lord Wright and Lord Thankerton opined that even though the Defendant’s marriage was still ongoing, the contractor’s promise to marry the Plaintiff was not null and void because he had already obtained a decree nisi for divorce, prior to making the promise. This conclusion was reached distinguishing the case from Wilson v. Carnley and declaring that decree nisi was a solid piece of proof that the marriage had ended. Lord Wright and Lord Thankerton disagreed with Lord Atkin, arguing that it is against public policy. Lord Atkin stated that where a marriage has completely broken down – for example, when a woman leaves her husband and children to live with her lover – the husband is free to enter into a contract to marry a responsible woman.

The nature of the decisions in the case of Wilson v Carnely and Fender v. St. John Mildway makes it evident that there is no precise method for figuring just how much a marriage vow or contract violates public policy, but that each case would be determined by its facts and circumstance alongside a consideration and application of the public policy prevalent in the jurisdiction.

2. Infancy

It is a general principle that contracts entered into by infants are deemed void by virtue of section 1 of the Infant Relief Act 1874, with the exception to contracts of necessaries[7].  

The 1999 Constitution recognizes a person who has attained the age of 18 years as an adult. Section 22 of the Child Right Act’s makes it illegal for anybody to betroth a child under the age of 18, and deems null and unlawful any marriage celebrations in which one of the parties is under the age of 18 years. It is sufficient to conclude that a minor is not capable of entering into a contract for marriage, as such a contract will be void and dead on arrival before any court for determination. Parties should consider the age of another before considering to enter into a contract to marry or promising to marry each other.

3. Condition Precedent and Parental Consent

According to Nathan Ibrahim in his article, “Examining The Limitations of Breach of Contract to Marry[8]” claims that the principle of condition precedent is pivotal in breach of promise cases. A promise to marry subject to a condition must only be deemed actionable once that condition is met.

In Aiyede v. Norman Williams (1960) LLR 253, the Plaintiff and Defendant were studying outside abroad and they both agreed to get married but subject to the Defendant obtaining his father consent, the Defendant wrote to his father seeking his consent, but his father refused. The Defendant later married another person. The Plaintiff instituted an action for a breach to promise to marry. The court found that since the promise to marry was subject to the Defendant obtaining his father which the Defendant did sought for but was refused, there was no breach of promise to marry.

Issue of marriage subject to the fulfilling of a condition must be put into consideration by the parties who intend to contract marriage under the Act, especially when one of the parties subject the agreement to the consent of his/her parent. It is deemed that there is no promise to marry between the two parties until the parent’s consent is acquired by the either of the parties. This is common especially among Yorubas and Igbos where parental consent is vital.

In Ugboma V. Morah[9] the Defendant claimed that the Plaintiff lacked the competence to enter into the contract because Igbo tradition dictates that the consent of the Plaintiff’s parents must be obtained. The Plaintiff had sued the Defendant for breach of his commitment to marry her. The Defendant’s argument that the Plaintiff failed to get her parents’ consent was rejected by the court. The court held that the Defendant could not use the Plaintiff’s failure to get her parents’ approval as a justification for his breach of the contract since both parties were of legal age. The court held further, where the parties are of legal age, they may lawfully perform a marriage under the Act without the consent of their parents.

That been said it is important to note that parental consent and approval is paramount in cases where the vow to marry is governed by Islamic law or customary law as opposed to marriage under the Marriage Act, however, there are some exceptions.

For instance, in Ogun and Oyo states, section 5 of the Marriage, Divorce and Custody of Children Adoptive Bye-Law Order, 1958 states that if a girl who is eighteen years of age or older cannot get her parents’ consent to marry, she and her suitor may jointly initiate legal proceedings against such parents to give reason for withholding consent and if the court is not satisfied with the explanation, the court will order that they proceed with the marriage.

4. Breach of Contract to Marry.

Nigeria’s legal system acknowledges the idea of breach of commitment/contract to marry even if there isn’t a separate legislation for it; instead, it falls within the larger umbrella of contract law. In certain situations, the Nigerian Contract Act, 1990 and rules of common law rules are applied in treating a broken vow to marry as a breach of contract.

Breach of Promise to marry can be categorized into two, namely:

1. Non-performance/Actual breach: This happens when two people set a wedding date but one of them fails to show up.
2. A hypothetical or anticipatory break: This happens when one of the parties takes a step toward implying that the marriage won’t last before the agreed-upon date. Eloping with someone else, impregnating someone else and going through marriage ceremonies are a few examples.^[10]

5. Proof of Breach of Contract to Marry/Promise of Marriage.

Proof of breach of contract to marry is always an issue whenever there is a breach of contract to marry. Mere romantic relationship does constitute a promise to marry. A court cannot find a marriage agreement based only on a friendly or romantic connection.

Therefore, your lawsuit for breach of commitment to marry may not succeed if you have been romantically connected with someone for years or even decades and they have not made a clear promise to marry you in a way that you can establish in court. You should have proof that you had a marriage arrangement beyond just a “boyfriend/girlfriend,” as the court is not about assertions but about providing facts to support them. Without evidence, a claim is considered abandoned^[11].

In Ezeanah v Attah[12] Tobi, J.S.C. stated thus:

“Two elements must be present for an agreement or marriage promise to be breached. First, the party that was dumped has to convince the court that there was, in fact, a promise of marriage made by the other sex under the Marriage Act, Islamic law, or customary law. Second, the partner breaking the agreement has actually failed to uphold the terms of the marriage, in fact refusing to do so.”

Section 197 of the Evidence Act added that if a plaintiff must succeed in an action for a promise to marry his/her testimony must be corroborated by some further substantial proof to back up such a promise. From the above, the following must be proved;

1. The aggrieved party must prove to the satisfaction of the court that there was, in fact, a promise to marry.

A party who is aggrieved that a contract to marry has been violated by the other party must prove that the promise was made orally or documented (i.e. through writing). Where a contract to marry was created orally, the conduct of the persons is relevant in proof it. A contract of marriage can also be determined by looking through the parties’ communications as illustrated in the case of Ugboma v. Morah also the case of Martins v. Adenugba[13].

In the case of Aiyede v. Norman Williams supra the court held that there can be no breach of the promise to marry. The court reasoned that there was no violation of the promise to marry since the commitment to marry was contingent on the Defendant receiving his father’s approval, which the Defendant sought for but his father refused to give consent.

2. The party who made the promise has failed or refused to keep the agreement of marriage.

To demonstrate that there was a promise to marry broken, it is insufficient to assume or have suspicions that one of the parties would not follow through on their marriage vows. The court in Ugboma v. Morah held that, based on the evidence, there had actually been a marriage commitment made to the plaintiff, and that the defendant had broken that promise.

The Plaintiff in Uso v. Iketubosin[14] was able to establish that the Defendant had made a marriage vow to her in 1947, but broke the vow by marrying a different woman in 1957. The court ruled in favour of the Plaintiff, finding that the Defendant’s actions violated his vow to marry the Plaintiff.

3. The Plaintiff’s Evidence must also be corroborated by some other material evidence in support of such promise.

Section 197 of the Evidence Act 2011 provides:

“A plaintiff in any action for breach of promise of marriage is not entitled to succeed unless his or her testimony is corroborated by some other material evidence in support of such promise and the fact that the defendant did not answer letters affirming that he had promised to marry the plaintiff is not such corroboration”

In Bessela v. Stern, the Plaintiff’s sister testified to have overheard the Plaintiff tell the Defendant, “You always promised to marry me, and you don’t keep your word” and then went on to say that the Defendant had promised to give the plaintiff some cash so she could go. The court held that the plaintiff’s sister’s evidence supported the Plaintiff’s testimony regarding the Defendant’s commitment to get married to her.^[15]

CONCLUSION

The analysis above shows that contract to marry is a mutual agreement between a man and a woman to marry at a future date. The agreement may be oral or in writing and is enforceable in law, subject of course, to certain factors which must be considered and satisfied for a party to succeed in an action for a breach of promise to marry. These factors are the critical issues which has been espoused in this article. A breach of contract of marriage or promise to marry is actionable per se and upon success, the plaintiff is entitled to an award of damages either general and or specific damages as the case may be, by the court. Where the plaintiff claims specific damages, he ought to show the court what he/she had suffered owing to the resultant breach.

REFERENCES:

• https://www.legalmatch.com/lawlibrary/article/damages-for-breach-of-promise-to-marry.html
• https://www.lawreform.ie/_fileupload/consultation%20papers/wpbreachofpromise.htm
• https://academic.oup.com/book/7159/chapterabstract/151735044?redirectedFrom=fulltext
• https://lawshelf.com/coursewarecontentview/suits-forbreach-of-promise-to-marry/
• https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1918&context=ilj

[1] https://thelawdictionary.org/marriage/#:~:text=Marriage%2C%20as%20distinguished%20from%20the,1%20Bish.

[2] (1886) LRIP&D 130

[3] ll Answers ltd, ‘Marriage and Nullity Case Summaries’ (Lawteacher.net, December 2023)

<https://www.lawteacher.net/cases/marriage-and-nullity.php?vref=1> accessed 30 December 2023

[4] (1971)1 UILR 149

[5] (1908) 1 KB 729,

[6] (1908) 1 KB 720, 724

[7] See Nash v Inman (1908) 2 KB 1 where the court held that a minor cannot be bound by a contract of goods supplied where such goods are not necessaries for the minor.

[8] https://barristerng.com/examining-the-limitations-of-breach-of-promise-to-marry-claims-nathan-ibrahim/

[9]  (1940) 15 NLR 78

[10] https://www.mondaq.com/nigeria/family-law/1244618/breach-of-promise-to-marry-a-legal-perspective

[11] https://thenigerialawyer.com/breach-of-promise-to-marry/

[12]  (2004)7 NWLR (pt 873) 468

[13]  (1946) 18 NLR 63

[14]  (1975) WRNLR 187

[15] Paul A. Aidlecture PhD lecture note.

About the Author

Ghide Asanawa kalava, is a law student of Edo State University Uzairue, a keen research and legal author. She has many publications to her name and has several leader portfolios and awards. She is the LAWSAN Campus Director, Edo State University Uzairue and  President of Ahish Foundation.