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BETROTHAL/

PROMISE TO MARRY

Groups: LWB06D&E

Azhani Binti Arshad Law 581 (Jul-Nov 2009)


THE LAW IN MALAYSIA
A contract to marry or an agreement to
marry refers to the contract where
parties agree that they will marry some
time in the future.
No provision in LRA relating to betrothal
in Malaysia and breaches of contract of
marriage.
Follow common law i.e. based on
contract

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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REQUIREMENTS
A valid contract has its basic elements:-
Offer
Acceptance
Consideration
Capacity

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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OFFER
Where one party (promisor/offeror)
makes a promise to marry (offer) the
other party (promisee/offeree)

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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ACCEPTANCE
The offeree accepts the promise to
marry made by the offeror.

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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CONSIDERATION
Consideration in a contract of betrothal
is the agreement/ consent of the other
party (promisee) to marry the party
making the promise (promisor).
It may also be proved by the party
doing some act requested by the other
party such as shifting over to live in
another place.

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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Harvey v Johnston (1848) 6 CB
295
D had promised to marry P within a
reasonable time after her arrival at
Lisahoppin, Ireland if she would go to
Lisahoppin for the purpose of marrying D.
she was single and resided at Toronto,
Canada. She went to Lisahoppin as
requested but D failed to carry out his
promise. She sued him for breach of
promise to marry. D alleged that there was
no sufficient consideration for his promise.
Held: there was perfectly good
consideration.
Azhani Binti Arsh Law 581 (Jul-Nov 2009)
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CAPACITY
Both parties to the marriage must have the
capacity to marry (at the time of their marriage).
Parties must be single at the time the promise was
made
The religion of one or both parties to the contract
to marry does not prevent them from marrying
Parties above the age of 18
They should not be within the prohibited
relationship.
If the parties are below 21 years old, written
consent from parents/ guardian is required.

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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PARTIES MUST BE SINGLE
If one or both parties to a contract to marry is or
are already married, the contract will be held to
be illegal as being a contract contrary to public
policy and unenforceable.
Spiers v Hunt [1908] 1 KB 720
D aged 70 and P aged 31. D promised to marry P

upon death of his wife (Ds wife suffered a heart


ailment from which she was expected to die
suddenly and early). P knew that D was a married
man. D then refused to marry P. P sued for breach
of promise.
Held: that the promise was illegal due to the

incapacity of D.

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EXCEPTIONS
If P had no knowledge that D was married when the
promise was made.
Shaw v Shaw & Anor [1954] 2 QB 429

Mr Shaw represented himself as widower and went through a


marriage ceremony with P, a widow in 1937. They lived
together as husband and wife. The real Mrs Shaw was alive
all the while until she died in 1950. in 1952, P subsequently
discovered that she was all along not legally married to Mr
Shaw. P sued the administrators of Mr Shaws estate for
damages for breach of contract to marry by the deceased.
Held: P was entitled to damages as the deceased breached
the contract to marry.
the most important breach of all was at the moment
of his death because when he died she was not his
widow, as she thought she was. She was in law a
stranger. That is the breach for which, in my judgment,
damages can be recovered. (Denning LJ)

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CONT.
When a decree nisi is pronounced
dissolving or annulling a marriage.
Fender v St John-Mildway [1938] AC 1
Ds wife had already obtained a decree nisi of
divorce on the ground of Ds adultery with P at
the time when D had promised to marry P
upon a date after the decree had become
absolute. D broke off the engagement.
Subsequently he married another woman and
P sued him for breach of promise.
Court awarded P damages for breach of
promise to marry.

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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CONT.
When a man is permitted to have plurality
of wives by his personal law
Nafsiah v Abdul Majid [1969] 2 MLJ 175
P sued for damages for breach of contract to
marry. The parties were Muslims. Ds Counsel
attempted to rely on the general rule of law
which invalidates a promise to marry if the
woman knew that the man was already married
at the time of the promise.
Held: that when Ds personal law allowed him to
marry more than one wife, the promise was
valid. Damages was granted to P.
#no longer applicable with the enforcement
of Article 121(1A) of the Federal Constitution.

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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RELIGION OF PARTY/PARTIES
PREVENT THEM FROM MARRYING
When the religion of one or both parties to the
contract to marry prevent them from marrying.
In such situation the contract is not valid
Mary Joseph Arokiasamy v Sundram [1938] MLJ 4
A Hindu man had promised to marry a Christian

girl. The girl was informed that the mans wife


had died. The man, however breached his
promise.
Held: there was no religious impediment against

a Hindu man marrying a Christian girl. The


promise to marry was therefore valid and
enforceable.

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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AGE
LRA is silent on the matter as regards to
permitted age to enter into the contract to marry.
However, since LRA provides for the minimum
marriageable age, it is contended that these ages
be the minimum age requirements for contracts
to marry.
Minimum marriageable age for girls is 16 years
(after the solemnisation was authorised by the
Chief Minister) and for boys is 18 years (Sec 10
LRA)
Rajeswary v Balakrishnan [1958] 3 MC 178
P was a girl who had entered into a contract to
marry when she was still a minor. D had breached
the contract and she sued him for damages.
Held: a minor could not enter into a valid contract

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PARTIES NOT WITHIN
PROHIBITED RELATIONSHIP
Section 11 LRA
Consanguinity (relationship by being
descended from the same family) and
affinity (relationship by marriage);
Relationship of the half blood is as much
an impediment as relationship of the full
blood and it is immaterial whether a
person was born legitimate or
illegitimate.

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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WRITTEN CONSENT FROM PARENTS/
GUARDIAN IS REQUIRED (IF BELOW 21
YEARS)
Section 12 LRA
Consent of parents or guardian in
writing:-
Father, mother (illegitimate/ if father

dead), adopter father @ mother or


person standing in loco parents
Court can also give consent if person
required refused to do so.
Application made in High Court in
chambers
Azhani Binti Arsh Law 581 (Jul-Nov 2009)
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BREACH OF BETROTHAL
The action for breach of betrothal will lie
against the party in breach whether it is
a man or a woman.
Where a specific date of the marriage is
not fixed or known, the marriage should
take place within a reasonable time.
If a party demand for the marriage, the
other party must have a reasonable
excuse for not wanting to go through
with the marriage.
Azhani Binti Arsh Law 581 (Jul-Nov 2009)
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DEFENCES
Misrepresentation of facts by P
D may prove that he or she had entered into the
contract to marry as a result of a material
misrepresentation of facts by P.
Wharton v Lewis (1824) 1 C & P 529
Facts: Before the engagement, Ps brother had informed
D that her father would leave property to her upon his
death. As it turned out, the father had a short time
before, paid off his creditors. (Ps brother and father
represented the information as false)
The other point was in relation to Ps past when she was
at Oxford. D had broken off the courtship when he
received information concerning the questionable life P
had been leading in Oxford. (it was discovered that P
had in fact been leading a questionable life)
Held: misrepresentation did not occur as he was not
induced by the promise. Defense failed. (P was awarded
damages by the Court)

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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CONT
A Contract to marry is not a contract of uberrimae
fidei.
A contract uberrimae fidei is one where a party has to
disclose to the other all relevant facts and information.
Beachey v Brown (1860) EB & E 796; [1843] ER Rep 506
D had raised the defence that P had agreed to marry
another when she entered into an engagement with D.
had he known this, he would not have agreed to marry
P.
Held: not entitle D to refuse to fulfill his engagement.
where it turns out that a woman is of unchaste
conduct, which goes 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 (Cockburn
CJ)

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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CONT
Ps own moral, physical or mental infirmity which renders P
unfit for the marriage
It must be proved that the infirmity was discovered
either after the engagement contract had been made or
that the infirmity had only begun to develop after the
making of the contract.
Jefferson v Paskell [1916] 1 KB 57
Facts: P contracted a disease of the chest soon after her
engagement. She thought it was a mere chill, but the
doctor diagnosed tuberculosis. In any case, she was not
ready and was unfit for marriage on the day fixed for the
wedding. She underwent treatment but D refused to marry
her even though she was given a clean bill of health less
than 6 months thereafter. However, it turned out that Ps
illness was not tuberculosis. D was sued for breach.
Court granted damages to P as D failed to prove that he
honestly and reasonably believed P to be unfit for
marriage.

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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CONT
Ds own mental or physical infirmity is not a
defence
Hall v Wright (1859) EB & E 765; [1843-60] All ER
Rep 734
D failed in his defense of his own physical infirmity

in an action of breach of promise to marry against


him. D had pleaded his own supervening ill-health,
that is a serious occasional bleeding from the lungs
from which he was still suffering and alleged that he
had been warned that the excitement of marriage
would endanger his life.
Held: Ds own mental or physical infirmity is not a

defence in an action of breach of promise to marry.

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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CONSEQUENCES
Parties can claim for :-
Damages
Return of gifts in the absence of
agreement to the contrary

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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DAMAGES
There are 2 kinds of damages
General damages: damages for the
abstract. In assessing the proper amount of
damages, the judges are not limited to the
mere pecuniary loss which P has sustained
but may take into consideration the injured
feelings and wounded pride of P.
Special damages: damages for specific
items and which may be quantified in
monetary terms, such as damages for
medical expenses and wedding
preparations

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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DENNIS V SENNYAH [1963]
MLJ 95
Facts: P alleged that as the result of the breach, she
had endure humiliation and mental anguish. She
has incurred expenses to the amount of RM870.10
and wished to claim both general and special
damages.
The learned judge found no aggravating
circumstances such as an allegation of seduction.
There was naturally mental anguish and
humiliation. On Ps future prospects for marriage,
he found her to be young and her prospects not
marred as such. He also considered her fathers
standing in the community. Therefore, General
damages amounting of RM 1,500 was awarded.
Special damages for food items, saris and costs of
wedding preparations which totaled RM 620.10 was
also approved.
Azhani Binti Arsh Law 581 (Jul-Nov 2009)
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RETURN OF GIFTS
Only the wrongful party/ D should return
the gifts and ring to P.
If the contract to marry is dissolved by
mutual consent, both parties must
return the engagement ring and gifts.

Azhani Binti Arsh Law 581 (Jul-Nov 2009)


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COHEN V STELLAR [1926] 1 KB
536
Facts: a man who had been awarded damages for
breach of promise claimed the return of the ring.
Held: if a woman who has received a ring refuses
to fulfill the conditions of the gifts she must return
it. So, on the other hand, I think that if the man
has, without a recognised legal justification,
refused to carry out this promise of marriage, he
cannot demand the return of the engagement
ringif the engagement to marry dissolved by
mutual consent, then in the absence of agreement
to the contrary, the engagement ring and like gifts
must, I think, be returned by each party to the
other. (McCardie J)
Azhani Binti Arsh Law 581 (Jul-Nov 2009)
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Azhani Binti Arsh Law 581 (Jul-Nov 2009)
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