Introduction
A promise to marry, also known as betrothal, is an agreement between two parties to get married sometime in the future. While there are generally no specific legal provisions governing the promises to marry in Malaysia, the principles under Malaysian contract law and English Common Law apply to such promises.
The Requirements of a Valid Promise to Marry
1. Offer
According to Section 2(a) of the Contracts Act 1950 (‘CA 1950’), a person is said to make an offer or proposal when he signifies to another his willingness to do something with a view to obtaining the assent of that other to the act.
In a promise to marry, an offer is made when one person signifies his willingness to marry the other, such as by asking, “Will you marry me?”.
2. Acceptance
Section 2(b) of the CA 1950 provides that a proposal is said to be accepted when the person to whom the proposal is made signifies his assent thereto. When a proposal is being accepted, it becomes a promise.
In the context of a promise to marry, acceptance occurs when the promisee accepts the offer made by the promisor, for example, by saying “Yes, I will marry you”.
3. Consideration
Under Section 2(d) of the CA 1950, when, at the desire of the promisor, the promisee has done or does or promises to do something, such act or promise is called a consideration for the promise.
A promise to marry is enforceable if it is supported by valuable consideration. For instance, a gift of a ring. Consideration can also take the form of an overt action, in which the promisee does some acts requested by the other party. For example, moving to another place to live with the promisor. In RS Thanalachimi v Sundararaju Mattaya [2011] 7 CLJ 197, the plaintiff was a Singaporean residing and working in London whereas the defendant was a Malaysian residing and working in California, United States. The defendant made several visits to the plaintiff in London and whilst there, had proposed marriage to her. Later, the defendant breached his promise to marry the plaintiff. The court held that the plaintiff must have had complete faith in the defendant’s word for her to have given up her home and career in London to start a new life with the defendant. The plaintiff’s willingness to give up everything she had in London for the promise of marriage by the defendant was done at great personal sacrifice and could be said to be consideration for the promise to marry made by the defendant.
4. Capacity
Both parties must have the legal capacity to marry at the time of the promise of marriage. As Malaysia only recognises monogamous marriage among non-Muslims, both parties who intend to get married must be single at the time of the promise. If either party is already married, the promise will become unenforceable as it is against public policy.
A man during his wife’s lifetime could not make a promise to marry another woman. In Spiers v Hunt [1908] 1 KB 720, the defendant promised to marry the plaintiff on the death of his wife, and the plaintiff knew that the defendant was a married man. The defendant did so with the intention, known to the plaintiff, of inducing her to commit adultery with him, and she did so after the promise and before the death of the defendant’s wife. It was held that such a promise to marry was contrary to public policy and could not be enforced.
5. Age
Pursuant to Section 11 of the CA 1950, every person who is of the age of majority is competent to contract. Section 2 of the Age of Majority Act 1971 provides that the age of majority in Malaysia shall be the age of 18 years. Section 10 of the Law Reform (Marriage and Divorce) Act 1976 further provides that any marriage purported to be solemnised in Malaysia shall be void if either party is under the age of 18 years at the date of the marriage unless, for a female who has completed her 16th year, the solemnisation of such marriage was authorised by a licence granted by the Chief Minister.
6. Not within Prohibited Relationship
The parties must not come within the prohibited degrees of kindred and affinity, such as direct descendants, similar relatives of the spouse, brothers, sisters, and their respective children, aunts, uncles. This has been laid down in Section 11(1) of the LRA which states that no person shall marry his or her grandparent, parent, child or grandchild, sister or brother, great-aunt or great-uncle, aunt or uncle, niece or nephew, great-niece or great-nephew. However, there is a proviso that allows a Hindu to marry his sister’s daughter (niece) or her mother’s brother (uncle) under Hindu law or custom.
Breach of Betrothal
A breach of promise to marry occurs when one party demands for the marriage and the other party does not intend to pursue the marriage without a reasonable excuse. The innocent party (plaintiff) may then bring an action for breach of promise to marry against the other party (defendant).
In Lau Pin Sien v Kong Chung Sng [2015] MLJU 354, after knowing the plaintiff was still married, the defendant still befriended her. The defendant promised to marry her and cohabited with her. However, when the plaintiff’s husband passed away, the defendant repudiated his promise to marry the plaintiff. In this case, there was evidence of the cohabitation of the plaintiff and the defendant, the taking of marriage photographs, the expenses incurred for buying furniture and overseas trip, and the marriage/engagement ceremony taking place. From the evidence adduced, the court found that the defendant did promise to marry the plaintiff and was in breach of that promise to marry. It was held that the defendant should not be allowed to take advantage of the position of a married woman and benefit from his wrong and subsequently relied on illegality, contrary to public policy, uncertainty, and unenforceability to discharge his promise to marry.
Remedies
The remedy available for the plaintiff can be categorised into damages and return of gifts.
1. Damages
a. General damages
Compensation involving non-monetary aspects of the specific harm suffered such as physical or emotional pain and suffering, loss of companionship, disfigurement, loss of reputation, loss or impairment of mental or physical capacity. This form of loss is not easily quantifiable.
b. Special damages
Compensation that can be quantified in monetary terms. For instance, damages for wedding preparation, catering, house renovation cost, repair or replacement of damaged property.
In Dennis v Sennyah [1963] 1 MLJ 95, the plaintiff became engaged to be married to the defendant. Later, the defendant broke off the engagement and refused to marry the plaintiff. The plaintiff complained that as a result of the breach by the defendant of his promise to marry her, she had endured humiliation and mental anguish and had been put to expense and had suffered damage. She therefore claimed general damages for breach of promise of marriage and special damages. In determining the amount of damages, the court considered the humiliation and anguish that the plaintiff had suffered, the prejudice to her future life and prospects of marriage, the rank and condition of the parties, and the defendant’s means. Accordingly, the plaintiff was awarded the sum of $1,500 as general damages and $620.10 as special damages.
c. Exemplary damages
Awarded when the court wishes to express its disapproval, condemnation, or denunciation of the defendant’s conduct and it is independent of any injury suffered by the plaintiff. The purpose of awarding exemplary damages is to prevent future occurrences and punish the wrongdoer.
2. Return of gifts
Gifts are usually exchanged by the parties before or during anytime when a promise to marry is made or at the time of the engagement celebration. In this event, only the wrongful party or the defendant should return the gift to the plaintiff.
In Cohen v Sellar [1926] All ER Rep 312, it was stated that if a woman refuses to marry a man whom she has promised to marry, she must return the engagement ring and other gifts given to her in contemplation of the marriage. On the other hand, if a man, without a recognised legal justification, refuses to carry out his promise of marriage, he cannot demand the return of the engagement ring. If the engagement to marry be dissolved by mutual consent, then, in the absence of agreement to the contrary, the engagement ring and like gifts must be returned by each party to the other. If the marriage does not take place either through the death of, or through a disability recognised by law on the part of, the person giving the ring or other conditional gift, the condition is to be implied that the gift should be returned. If the marriage takes place, the engagement ring or like gift will, in the absence of an express agreement to the contrary, become the absolute property of the recipient, and that property will not be diverted by subsequent divorce.
