Civil Family Law - Promise to Marry (Betrothal)

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one of the topics in LAW 581 - Family Law II (Civil)

one of the topics in LAW 581 - Family Law II (Civil)

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  • 1. 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) 1 azrin hafiz / BLS (Hons) / october 2013 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 ? azrin hafiz / BLS (Hons) / october 2013 3 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 azrin hafiz / BLS (Hons) / october 2013 5 remedies azrin.hafiz 2 azrin hafiz / BLS (Hons) / october 2013 4 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. azrin hafiz / BLS (Hons) / october 2013 6 1
  • 2. 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 azrin hafiz / BLS (Hons) / october 2013 7 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 azrin hafiz / BLS (Hons) / october 2013 8 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 azrin hafiz / BLS (Hons) / october 2013 9 azrin hafiz / BLS (Hons) / october 2013 10 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 / BLS (Hons) / october 2013 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 11 azrin hafiz / BLS (Hons) / october 2013 12 2
  • 3. 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 azrin hafiz / BLS (Hons) / october 2013 13 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) azrin hafiz / BLS (Hons) / october 2013 14 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 azrin hafiz / BLS (Hons) / october 2013 15 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 / BLS (Hons) / october 2013 azrin.hafiz 16 • father Biological Adopted azrin hafiz / BLS (Hons) / october 2013 17 azrin hafiz / BLS (Hons) / october 2013 18 3
  • 4. 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 azrin hafiz / BLS (Hons) / october 2013 19 Defences d) Df’s own mental / physical infirmity You have to prove that there is a total reliance to information given. azrin hafiz / BLS (Hons) / october 2013 21 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 azrin hafiz / BLS (Hons) / october 2013 22 b) Contract to marry is not a contract of uberrimei fidei Case azrin hafiz / BLS (Hons) / october 2013 20 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 azrin hafiz / BLS (Hons) / october 2013 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? 23 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. azrin hafiz / BLS (Hons) / october 2013 24 4
  • 5. 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 azrin hafiz / BLS (Hons) / october 2013 25 azrin hafiz / BLS (Hons) / october 2013 26 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 azrin hafiz / BLS (Hons) / october 2013 27 • 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 azrin hafiz / BLS (Hons) / october 2013 28 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 / BLS (Hons) / october 2013 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. 29 ii. Special damages - Something that can be quantified in monetary terms. - E.g damages for wedding preparations, catering, house renovation cost etc. azrin hafiz / BLS (Hons) / october 2013 30 5
  • 6. 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 azrin hafiz / BLS (Hons) / october 2013 Principles laid down by McCardie J in 31 Cohen v azrin hafiz / BLS (Hons) / october 2013 32 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. azrin hafiz / BLS (Hons) / october 2013 33 azrin hafiz / BLS (Hons) / october 2013 34 Thank you for your attention prepared by: Azrin Hafiz Bachelor of Legal Studies (Hons) student Faculty of Law Universiti Teknologi MARA MALAYSIA azrin hafiz / BLS (Hons) / october 2013 azrin.hafiz 35 6