Not every agreement to marry will result in a marriage.
Basically under statutory law an agreement to marry is said to exist under common law when parties decide to get married and act in a manner that shows their intention to marry. Under common law, agreements to marry amounted to contracts that were legally enforceable provided it could be shown that the parties involved intended to enter into a legal relationship so that a party who withdrew from such an agreement without any legal justification could be sued for breach of contract and the injured parties could claim damages.
Being essentially a contractual relationship, all the usual contractual requirements must apply i.e. requirements as to capacity to enter into that contract, consent, intention to create legal relations etc. All these must be met before one can allege that there has been a breach of that contract.
Shaw v. Shaw (1954) 2 Q 3
The Plaintiff had cohabited with a man she regarded as a husband for 14 years and they lived together as husband and wife and at one point even celebrated their marriage. Upon his death, the plaintiff discovered that for 10 years of their marriage the man had been married to another woman who died 2 years before him and that it was therefore in those two years that he had capacity to marry the plaintiff. i.e. he was only single for 2 years of their cohabitation and only in those 2 years that he should have been legally been married to her. She sued in the States for breach of warranty and that warranty was that he was single and had capacity to marry and he had therefore breached his promise to marry her. The court awarded her damages for breach of that warranty.
Other than general damages, when there is a breach of agreement to marry under common law normally gifts given in contemplation of that marriage will also be required to be returned by the guilty party.
Cohen v. Seller (1926) 1 K.B. 536
The gift in question was a diamond engagement ring that had been given to the lady and the issue was whether she should return the ring when the engagement was broken and it was held that if it was the man who was guilty, or responsible for the breach, then he could not demand the return of the engagement ring but if it was the woman who had refused to fulfill the conditions of the agreement then she was required to fulfill the conditions of the ring. It was found that it was the man who had refused to carry out his promise and the woman was awarded general damages and the lady allowed to keep the engagement ring.
Larok v. Obwoga (Ugandan Case)
The lady who was the Respondent and the Appellant were friends when the lady was a pupil at college she became pregnant and as a result was expelled from the college. The man then wrote to the lady promising to marry her by the end of April. This was in 1968. In October he again wrote to the lady indicating that he was no longer keen to marry her. The lady then went to court and sued for breach of promise to marry and the lower court held that the man had committed a breach of the promise and awarded the lady 2000 as damages. The court based its computation on two grounds that the chances of getting married had been impaired and secondly the injury posed to her feelings. The man appealed but his appeal was dismissed and the sum of 2000 shillings was to be paid.
In England this action of breach of promise to marry is no longer recognized. It was abolished in 1970 by the Law Reform Miscellaneous Provisions)Act UK (1970) the act abolished actions of breach of promise to marry but in Kenya it was not and still applies in Kenya via the Judicature Act.
MUINDE V. MUINDE
Please note provisions of Section 170 of the Penal Code which states that any person who willfully and by fraud causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit and have sexual intercourse in that belief is guilty of a felony and is liable to imprisonment for 10 years.
AGREEMENT TO MARRY
Under Islamic law agreements to marry are entered into between the parents of the intended spouses. Which means that until the contract to marry and the actual marriage takes place; no contractual obligations arise as between the intended spouses. Therefore no suit for breach of agreement to marry can be instituted. However, where gifts or ornaments have been exchanged between the two families, then these can be returned if the agreement to marry is broken. This was the issue in
FAZALDIN V. DIN MOHAMMED
The girl’s father entered into a betrothal agreement without her consent and she later refused to marry the prospective suitor. The prospective suitor brought an action where he claimed damages for breach of agreement to marry and in the alternative he also sought an injunction to restrain her from marrying any other man until he had recovered all his damages and the gifts he had given. The court held that he could only recover the presents and the ornaments he had given but could not recover any damages.
The same position obtains under Hindu Law where agreements to marry are made between the parents of respective spouses and a betrothal in respect of a boy and a girl can be done when they are still infants. In
Dhanji v. Ruda
The betrothal agreement was made when the parties were still children and the parents exchanged ornaments, clothing and other gifts. When the girl became of age, she indicated that she had no intention of getting married to the boy and the engagement was eventually broken. The parents of the boy instituted proceedings for damages for the breach of contract. Court held that no damages were recoverable because a contract where a person is forced against her will is contrary to public notice and morality and the parents could only recover their gifts and ornaments.
Agreement to marry under customary law
Under customary law agreement to marry normally take the form of betrothals and the nature of the betrothal will differ between the different communities whereby for some communities it is quite an elaborate formal ceremony while for others it is a family affair with a few witnesses, therefore the agreement under African customary law takes place between the families of the parties and not the parties themselves. The effects of a betrothal under customary law is that on part of the woman she loses her sexual freedom and cannot have any sexual or any relationship with any other man and on the part of the man he is under an obligation to pay the bride price ..
On the part of the family, the family of the girl is bound to give away their daughter and are under an obligation to keep her chastity while the family of the boy is under an obligation to pay the bride price. In the event of a breach occurring, it has been held that under African customary law an action of breach of promise to marry will not lie. This was held in muinde v. muinde There are other remedies provided for under the Magistrates Act which include actions for damages for seduction, and also actions for pregnancy compensation.
It stated that if the Agreement to marry is made under statutory law, the action will lie because the action is part of the deceased family law but it will not lie in customary law because the remedies provided for in customary law are listed and they had been awarded in the past.
Beda Maina v. Matheno
W. Ndegwa v. Edward Wandurwa