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Family Law notes – Promise to Marry
Key point Description Section Case
The questions to ask 1. Whether there is
a valid contract
2. If yes, whether
there has been a
breach
3. If yes, whether
the defendant
has any defence
4. If none, what are
the remedies?
Requirements of a valid contract to marry
1. Consideration
2. Capacity
3. Age
1. Consideration - What amounts to
consideration
> The agreement or
consent of the
promisee to marry
the promisor
> Overt action on
the part of the
promisee
> Doing some act
requested by the
other party such as
shifting over to live
in another place
- Harvey v Johnson
> D promised to
marry P if D comes
to Lisahoppin.
> P went to
Lisahoppin as
requested by D
failed to carry out his
promise.
> Maule J held that
P going to
Lisahoppin amounts
to good
consideration and
therefore there was
a valid contract to
marry. Therefore,
she can sue for
breach of promise to
marry.
2. Capacity - Parties must be
single at the time the
promise is made.
One or both of them
cannot be married.
The contract will be
held illegal as being
in contrary to public
policy and therefore
unenforceable.
- Spiers v Hunt
> D promised to
marry P once his
wife dies.
> His wife did not die
and D refused to
marry P.
> She sued for
breach of promise.
> The court held the
promise illegal to the
incapacity of D.
Phillimore J stated
that the law
discourages
tendency of which to

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- Exception to
capacity
> Representation of
himself as having
the capacity = there
has been a breach
of promise since the
beginning.
> When a decree
nisi is pronounced
dissolving or
give the husband
another woman to
care for or a wife
another man to care
for.
- Wilson v Carnley
> Vaughan William
LJ agreed with
Phillimore J in the
case of Spiers v
Hunt and said that
such a contract
would be against
public policy and
morals and should
not be enforced.
- Shaw v Shaw and
Another
> Mr Shaw
represented himself
as a widower and
married plaintiff.
They lived together.
> The real Mrs Shaw
was alive and died
in 1950.
> In 1952, plaintiff
discovered she was
not legally married
to Mr Shaw and
sued the estate for
damages for breach
of contract to marry.
> Denning LJ stated
that if a man
represented himself
as single, reaffirms
and warrants it and
gets married, then
there has been a
breach of promise
since the beginning.
Damages can be
recovered.
> His Lordship also
stated that if plaintiff
had known that Mr
Shaw was a married
man, the case would
be different.

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annulling a marriage
= the person is
deemed to have the
capacity to marry.
> When a man is
permitted for
polygamy by his
personal law = has
the capacity to
marry another even
if he is already
married.
- Fender v St John-
Mildmay
> D’s wife already
obtained decree nisi
of divorce due to D
committing adultery
with P.
> D promised to
marry P after the
decree had become
absolute.
> D broke off
engagement.
> P sued for breach
of promise.
> Lord Atkin states
that a promise if
made during decree
nisi would cause the
marriage status to
be as if it was
decree absolute due
to the circumstances
where the parties
are no longer living
apart and owe no
duties to each other
to perform
matrimonial
obligation. Damages
can be recovered.
- Nafsiah v Abdul
Majid
> Counsel for D
submitted that D has
no capacity to marry
as he is already
married. P cannot
sue for damages for
breach of contract to
marry.
> High Court
declined the
submission and held
that D’s personal
law allowed him to
marry more than
one wife and thus
the promise was
valid. Damages can
be recovered.
3. Age - Section 11 of
Contracts Act 1950
- Rajeswary v
Balakrishnan

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> A person is
competent to enter
into a contract if he
has attained the age
of 18 years.
However, this does
not apply to a
contract to marry for
girls.
- Law Reform
(Marriage and
Divorce) Act 1976
> Minimum age of
marriage for girls is
15 years and for
boys 18 years.
> The girl was a
minor and has
entered a contract to
marry.
> D breached the
contract and she
sued for damages.
> High Court held
that she can recover
damages and they
also made a point by
distinguishing the
case from Mohori
Bibee as the Mohori
Bibee case is a
business contract,
not a contract to
marry.
- Fernandes v
Gonsalves
> Court
acknowledged that a
contract to marry
may be entered by a
minor and an adult.
This case is also
distinguished from
Mohori Bibee.
- Khimji Kuverji v
Lalji Karamsi
> The High Court
referring to the case
of Rajeswary, held
that a minor may
enter into a valid
contract to marry.
Breach of promise - Breach of promise
happens when,
where there is no
specific date, the
marriage did not
take place within a
reasonable time or if
there is a specific
date, the defendant
refuse to carry it out
or is absent from the
wedding.
- Harrison v Cage
> The woman who
promised to marry
plaintiff married
someone else and
refused to marry
plaintiff.
> Court held there
was a breach of
promise to marry.
- Frost v Knight
> The defendant
promised to marry
plaintiff is his father
dies.

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> When the father is
still alive, the
defendant
announced his
refusal to carry out
the promise and
broke off the
engagement.
> Plaintiff sued for
breach of promise to
marry.
> Court held that the
plaintiff need not
wait for the event
which is the father’s
death to take place
and she can take
action immediately
on anticipatory
breach.
Defences
1. Misrepresentation
of fact
- Defendant must
prove he or she had
entered into the
contract as a result
of a material
representation of
fact by the plaintiff. If
this defence is
successfully raised,
the court will dismiss
claim for damages.
- Defendant must
prove that he was
induced to make the
promise, or to
continue the
relationship by false
representations or
wilful suppression of
the truth.
- Wharton v Lewis
> In this case, the
plaintiff’s brother
had made a
misrepresentation
that plaintiff’s father
will leave property to
her upon his death –
this was a lie.
> Second
misrepresentation
was that the
plaintiff’s father and
brother said plaintiff
was not leading a
‘questionable life’
when in fact she
was.
> Defendant broke
off the engagement.
> Court left it to the
jury to decide, where
the jury decided that
plaintiff were to be
rewarded damages.
> This is because
defendant was not
‘induced’ to make
the promise or to
continue the
relationship.

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2. A contract to
marry is not a
contract uberrimae
fidei
- Contract uberrimae
fidei is one where a
party has to disclose
to the other all
relevant facts and
information. In the
case of contract to
marry, the contract
is not a contract
uberrimae fidei and
the defendant may
forward this as a
defence. Hence, if A
is already engaged
to C, he need not
inform B regarding
the engagement
when he promises to
marry B.
- Beachey v Brown
> Defendant raised
defence that plaintiff
had agreed to marry
another when she
entered into an
engagement with
defendant. Had he
known this, he
would not have
agreed to marry
plaintiff.
> Court rejected his
defence and gave
judgement to
plaintiff.
> Cockburn CJ while
agreeing there are
many things a man
may want to know
about a woman he is
to marry, the
discovery of such
attributes should not
entitle the defendant
to refuse to fulfill his
engagement. His
Lordship, however,
went on that if the
woman is of
unchaste conduct,
which does to the
very root of the
contract of marriage,
there, from the
excess and
necessity of the
case, the man is
released from his
contract.
> This case shows
that there may be
extreme situations
where the defence
may be acceptable.
3. Moral, physical or
mental infirmity
- Defendant has to
prove the other party
has actual moral,
physical or mental
infirmity that renders
him or her unfit fo
rmarriage. It must
also be proved that
the infirmity was
- Jefferson v Paskell
> In this case,
plaintiff was
misdiagnosed to
have tubercolosis.
She thought she
was not ready and
unfit. Defendant
refused to marry her

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discovered either
after engagement
contract had been
made or that the
infirmity had only
begun to develop
after the making of
the contract.
even though she
was given clean bill
of health afterwards.
> Defendant sued by
plaintiff for breach.
> Phillimore LJ
stated that the
burden of proof was
upon the plaintiff to
show she would be
fit within a
reasonable time or
that she actually
became fit before
breach. And it is the
burden of proof of
the man that the
woman suffers from
permanent and
prolonged illness.
> In the case, the
woman had proven
that she was healthy
and the man still
refuses to marry her.
Therefore, damages
were awarded to the
plaintiff.
4. Own mental or
physical infirmity
- Hall v Wright
> Court held that the
plea of own physical
infirmity was no
answer to the action.
> In this c ase,
defendant pleaded
that the excitement
of marriage would
endanger his life
(due to serious
disease occasioning
bleeding from the
lungs).
Consequences of a breach of promise
1. General damages - General damages
refer to damages for
the abstract such as
negligence,
defamation and
breach of promise to
marry.
- Berry v Da Costa
> Plaintiff moved to
live with defendant
and accompanied
defendant to Paris
on the supposition
that the marriage
would take place
there.
2. Special damages - Special damages
refer to damages for

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specific items, which
may be quantified in
monetary terms.
Examples are
damages for
medical expenses
and wedding
preparations.
>The defendant,
however, married
another woman.
> The plaintiff
claimed damages
for breach of
promise and she
was awarded
compensation for
the degradation and
misery. The decision
was confirmed by
the court.
> Willes J noted that
in ascertaining the
proper amount of
damages these may
take into
consideration:
a. Injured feelings
and wounded pride.
b. Loss of prospect
of marriage.
- Dennis v Senayah
> Hepworth J
observed that in
assessing damages,
things that should be
considered are:
a. Prejudice to his or
her future life and
prospects of
marriage
b. Rank and
condition of the
parties
c. Defendant’s
means
d. Seduction
e. Humiliation and
mental anguish
> The court held that
general damages
were awarded for
the plaintiff due to
her father’s standing
in the community.
> Special damages
for food items, saris
and costs of
wedding
preparations are
also approved.

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- Rajeswary & Anor
v Balakrishnan &
Ors
> Court considered
defendant’s
behaviour had been
‘unfeeling and
contemptible’ and
that he had written a
letter to his
prospective father-
in-law. The court
also took
consideration the
defendant’s financial
position when
assessing the
damages.
- Cohen v Sellar
> McCardie J
explained that if the
woman breaches
the contract, the
gifts are to be
returned.
> If the man has
breached, he cannot
demand the gifts.
> If engagement is
dissolved by mutual
consent, all gifts
must be returned to
each other.
> If marriage does
not take place due
to death or disability,
the gift shall be
returned to the giver.
> If the marriage
took place before
divorce, the gifts
shall not be
returned.