The Position of the Nigerian Law on Breach of Promise to Marry

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By Emmanuel Otumala

Preamble

The number of broken romantic relationships in Nigeria has increased significantly in recent years. Each day unfolds a new story of heartbreak, broken marriage proposals, and tales of love gone awry. This leads us to wonder why so many proposals and marriages are called off, and whether there are any consequences for failing to honor such promises.

While it is agreed that love can fade and that one can lose affection for someone they once loved. However, it is believed that the growing number of cases is due to a lack of consequences for the promise violators. As a result, many people make false promises knowing they will get away with it leaving the jilted party brooding and uncompensated as they are mostly unaware of their legal rights.

This article is not intended to taunt you, who have suffered emotional trauma as a result of a heartbreak nor is it intended to offer you a shoulder to cry on in your time of grief (kindly see a therapist for that). We are solely concerned with the position of the law on parties’ breach of promise to marry within the Nigerian context.

Therefore, by the time you are done reading this article, you would be left with the dual options of whether to sue your old flame for his or her failure to marry you as agreed or to sit back and wallow in self-pity.

Structurally, this paper is divided into seven parts which shall be discussed in detail.

  1. Definition  of key concepts
  2. Marriage as a legally binding contract
  3. Nature and proof of promise to marry
  4. Types of breach of promise to marry
  5. Remedies for breach of promise to marry
  6. Can one be criminally liable for breach of promise to marry?
  7. Defenses to a claim for breach of promise to marry
  1. Definition  of key concepts

For a proper understanding of the topic at hand, it is expedient that we start with the legal definitions[1] of the key concepts: Marriage, Promise of marriage, and Breach.

Marriage is defined as “a contract, according to the form prescribed by law, by which a man and a woman, capable of entering into such a contract, mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and a wife. In Hyde v Hyde[2] Marriage is defined as the voluntary union for life of one man and one woman, to the exclusion of all others.

A promise of marriage is defined as a contract mutually entered into by a man and a woman that they will marry each other. It can also be regarded as a betrothal or an agreement to marry and is only formed when the parties mutually exchange promises to marry each other.

Lastly, a breach is defined as “the breaking or violating of a law, right, or duty, either by commission or omission.”

Having briefly examined all major concepts individually, a breach of promise to marry can be explained as the failure of a promisor to perform his or her promise of marrying the promisee without any legally justifiable excuse.

2. Marriage as a legally binding contract

Marriage, as defined above, is a contract between a man and a woman. We will briefly assess this assertion and its legal implications on the issue in discourse.

Sagay, a professor of law defines a contract as an agreement which the law will enforce as affecting the legal rights and duties of the parties involved” (Sagay, Nigerian Law of contract). The court adopted this definition in the famous case of Orient Bank (Nig.) Plc v. Bilante Int’l Ltd[3].

In law, a promise to marry is considered a contract that can be made orally or in writing, and its breach will attract legal consequences similar to a breach of a commercial contract. In Ezeanah V. Atta[4], Niki Tobi JSC stated inter alia that “…. an agreement or contract to marry is a bilateral affair between a man and a woman, both parties must be ad idem in respect of any collateral transaction relating to the intended marriage and breach of that promise is enforceable against the person who breached”.

Now that we have established that a promise to marry is a form of contract, it stands to reason that all relevant legal principles that govern commercial contracts will also be applicable by default. We will therefore move on to examine the essential elements of a valid contract and how each of them relates to the topic at hand.

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OFFER: All valid contracts must start with an offer. Simply put, an offer is a definite proposal from one person to another, to enter into a contract (marital contract in this context) with the clear intention of being bound by the terms if accepted by the other party. Therefore, you cannot bring an action for breach of promise unless your partner has made you an offer to marry.

An offer could be made orally, evidenced in writings, or inferred from parties’ conduct. Although there are no formal requirements for this contract, the offer must be communicated in clear terms without ambiguity, thereby giving the other sex an opportunity to either accept or reject the proposal.

It is pertinent to point out that not all romantic gestures or expressions of love are legally regarded as indications of intent to marry. In fact, that you are cohabiting couples is not a covert offer. This is comparable to an “invitation to treat” in commercial contracts; it has the appearance of an offer but should never be mistaken for one.

Unlike in commercial contracts where we may have a unilateral offer made to the whole world,[5] a promise to marry can only be made to a specific person. Thus, a social media post will not count as an offer to marry you even if you meet the poster’s specifications of an ideal spouse and you are interested.

A conditional offer is no offer. When your partner subjects his/her proposal to certain conditions, this promise cannot be legally enforced against them until those conditions are fulfilled. See Aiyede vs Norman –William[6].

ACCEPTANCE: Since a contract involves two parties, there must be a mutual agreement to the terms (consensus ad idem). Therefore, it is of the essence that an offer to marry is accepted by the person to whom it is made.  A promise made by one person to marry another is not binding unless and until there is a reciprocal promise by the other gender to marry the first person.

Similar to an offer, such acceptance must be definite, absolute, unconditional, and communicated back to the offeror that the offer has been accepted in its exact terms.

INTENTION TO ENTER INTO A LEGAL RELATION: Even though an offer has been made and accepted, failure to prove intent to be legally bound renders the contract null and void, and the courts will refuse to enforce it. It is not enough to show that a promise was made to marry you, you must also prove that the promisor intended for the promise to be binding on him/her at the time of making it.

It may appear ludicrous to prove the state of a man’s mind at a particular time since you are not in their mind. Because the law recognizes this difficulty, the courts employ an objective approach to determining intent. To put this another way, would a reasonable observer regard your partner’s promise as “serious” enough?

The intent is determined by the facts and circumstances of each case, and once genuine intent to marry can be established, it will not matter if a party secretly did not intend to be legally married. All that matters is whether a reasonable person can infer from your acts and conduct that you intended to be married when you made the promise.

Thus, even if you “accepted” a proposal made to you casually by your lover in course of your clandestine activities, it may not be legally enforceable.

This element is aptly captured by the dictum of Niki Tobi JSC in Ezeanah’s case (supra) where he stated that “…an agreement to enter into a marriage should leave nobody in doubt as to the real intention of the parties to enter into a marriage. A mere convivial or romantic relationship without more is not enough for a court to found an agreement to marry

CAPACITY: The law will never enforce a contract entered into with a party that lacks the contractual capacity to do so. Only people who are legally capable of marrying each other can enter into a contract of promise of marriage. The law is that a minor, a drunken person, or a person of unsound mind cannot contract. Although the Marriage Act does not expressly stipulate the marriageable age in Nigeria, section 18 of the Act implies that the legal age is twenty-one. The Child Rights Act of 2003 pegged the marriageable age at eighteen years, however, the Act does not apply across all states in Nigeria. Our main concern notwithstanding is that parties must have attained the marriageable age fixed by the applicable laws. Similarly, a promise of marriage made by a drunken person or a mentally deranged individual will not be actionable in law.

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CONSIDERATION: There are no freebies in the realm of contract, thus, a contract must be supported by consideration from both parties for it to be enforceable. You must have given or forborne something in return for your spouse’s promise of marriage.

The good news is that the law is concerned with sufficiency rather than the adequacy of consideration. What is required therefore is the existence of some consideration that is of economic value, regardless of its size or magnitude. Applying this principle to the issue at hand, it will suffice if you relied on a marital agreement to sponsor your spouse’s education or fund their business. Similarly, since the definition of consideration encompasses forbearance, forsaking your legal rights or compromising an opportunity to study or work abroad will be deemed sufficient. However, you should bear in mind that your consideration must be clearly and unequivocally traceable to an agreement to marry and not borne out of sheer love.

3 Nature and proof of breach of promise to marry

A breach of promise to marry could come in form of anticipatory breach or non-performance. An anticipatory breach, as the name suggests, occurs before the date agreed upon for performance. Therefore, if your lover expresses unwillingness to fulfill his/her promise of marriage before the wedding date, you may sue for anticipatory breach. An anticipatory breach could also occur if the defendant’s actions render performance impossible. In Uso v Iketubosin[7], the defendant promised to marry the plaintiff in 1947 but got married to another woman in 1957. The Court ruled that the defendant’s actions constituted a breach for which the plaintiff was entitled to monetary damages. See also Martins v. Adenugba (1946) 18 NLR 63

Non-performance occurs when a party fails to perform his/her contractual obligations at the agreed time. The failure or refusal of one of the parties to appear for the marriage constitutes this kind of breach. When no date is specified, the law presumes that the promise to marry must be carried out within a reasonable time or at the request of one of the parties

Regardless of the nature of the breach in question, you must establish and prove the two prerequisite requirements laid down by the Supreme Court in the case of Ezeanah V. Atta[8] per Niki Tobi, JSC (as he then was) before you can succeed in an action for breach of promise to marry.

That there was a promise of marriage: Firstly, there can be no action for breach of promise unless there exists a contract to marry. Consequently, the party alleging breach must prove to the court’s satisfaction that there existed a promise to marry made by the defendant under the applicable laws[9]. For such a promise to be considered a valid agreement in the eyes of the law, it must transcend a mere convivial or romantic relationship and conform to all the principles of contract law discussed earlier.

That there was a failure to fulfill the promise: It is only logical that to succeed in an action for breach, the complainant must prove that the promisor indeed failed to fulfill his/ her promise to marry the former. A conditional promise to marry may only be sued upon when the condition has been met. See Aiyede vs Norman –William (1960) LLR 253

It should be pointed out that in dispensing with this burden of proof, the testimony of the plaintiff must be corroborated by some other material evidence of people who are privy to such proposal[10]. Section 197 of the Evidence Act, 2011

4. Remedies for breach of promise to marry

It is a trite rule of justice that for every wrong, there is a remedy (Ubi jus ibi remedium). Thus, when one party to a marriage contract is made to suffer injustice due to the breach of the other, the law will intervene and provide the necessary compensation in the form of damages. Damages for financial losses, compensatory damages, punitive damages, and damages for emotional and psychological loss are some of the types of damages that may be available to an aggrieved party.

A raging question that begs an answer at this point is whether the court can order for specific performance of a promise to marry since we have already affirmed that it is treated like a commercial contract. The answer is no, because the law recognizes the peculiarity and sanctity of marital contracts, hence, will never compel a party to marry another against their will. While it is good news that you can sue your ex for failing to marry you, the sad one is that even if you win in court, you’ll never get him/her back on the court’s order. In Mabamije vs Otto[11], Ms. Mabamije claimed that Mr. Otto breached his promise to marry her, and she sought N20 million in damages as well as an order compelling Mr. Otto to perfect/complete all marriage arrangements previously made by him. The trial court ruled in her favor but the decision was overruled on appeal.

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While it is true that the doctrine of estoppel was the primary reason for the suit’s dismissal, it is argued that the court would not have granted specific performance even if she had won on merit.

5. Can one be criminally liable for breach of promise to marry?

Marriage and the promise of the same fall under the purview of private law. Thus, its breach will only constitute a civil wrong and no person can be imprisoned for failing to marry another. However, section 383 of the Penal code (which is only applicable in the North) provides that if a man promises to marry a woman as an inducement to cohabitate or continue having sex with her, he becomes criminally liable and may be imprisoned for this act. There is no similar provision under the Criminal code.

6. Defenses to a claim for breach of promise to marry

The law recognizes grounds or circumstances that may justify a defendant’s breach of promise to marry. Since it is a form of contract, general defenses/ vitiating elements to commercial contracts would also suffice as reasonable grounds for breach of promise. These defenses include fraud, misrepresentation, duress, undue influence, mistake, frustration, illegality, incapacity, etc.

Special defenses could also be pleaded where there are some infirmities in the plaintiff that renders him or her unfit to marry. Being a member of the LGBTQ community, a carrier of STI, genotype or blood group incompatibility, infidelity, or intolerable behavior can constitute grounds for breach. However, knowledge of any of these before the agreement precludes the defendant from pleading such as the basis for reneging on his promise. This is so because to a willing person, no injury is done[12]

Similarly, where there is a promise of marriage before the discovery of any of the circumstances listed in sections 3, 15, or 16 of the Matrimonial Causes Act, 1990[13], the party who was not aware of such at the time of the agreement or promise may justifiably renege on the promise of marriage.

Lastly, a declaration of intent to marry made to a third person is not actionable unless such a promise is communicated to the other person under the authority of the person making the declaration.

7. Conclusion

We have established in this article that a breach of promise of marriage is not only a moral wrong but also a legal wrong; thus, both men and women are urged to refrain from making false marriage promises to avoid possible legal consequences.

It has also been established that failing to keep a promise to marry is treated as a breach of contract. Thus, the jilted party can approach the court after due consultations with his or her lawyer and may be entitled to damages based on the merits of the case.

Emmanuel Otumala is a law student of the University of Ibadan


Footnotes

[1] All definitions are taken from the fourth edition of the Black’s Law Dictionary

[2] (1886) LRIP&D 130

[3] [1997] 8 NWLR (Pt. 515) 37

[4] (2004) LPELR-1198(SC)

[5] Carlill v Carbolic Smoke Ball co 1 Q.B. 256

[6] (1960) LLR 253

[7] [1975] WRNLR 187

[8] supra at pg 19-20

[9] A promise to marry made under a customary or native laws will not be actionable. See Ayegba v Ajunwa (Unreported) suit No. MD/3504/77 delivered on 1 February 1980 by the High Court of Makurdi.

[10] See Olasore & Anor V. Ajibolade & Anor (2011) LPELR-8953 (CA)

[11] (2016) LPELR 26058(SC)

[12] The common law principle of volenti non fit injuria

[13] Section 3(1)(a)-(e) relates to circumstances that can render a marriage void while sections 15 and 16 provides grounds for dissolution of marriage

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