ABSTRACT

This article brings out the legal preposition of breach of promise to marry. For the understanding of this research piece, laws from other jurisdictions are taken into consideration.

This research piece also delves into how properties acquired together in a relationship can be shared; the factors that the courts would consider before awarding damages.

This article would serve as an interesting vehicle with which women who have been disappointed today would take legal action. It doesn’t only operate for women but also men who have spent all their monies on ladies who later dump them.

1. INTRODUCTION

Most often, a relationship is expected to end in marriage. Christians and Muslims maintain that marriage is an institution of God. And that, whatever God has joined, no man should put asunder. Tons of promises go into a relationship before it’s finally concluded into marriage. These promises either turn out to be fulfilled or not.

It is only reasonable to say that, promises are necessary for the germination of the relationship. Even though you’d raise the argument of genuineness and intention about these promises, you'd also affirm that some of them are fulfilled. In that, whether or not a relationship would blossom and gradually enter the final stage depends on each partner's contribution in abiding by or performing the promises made.

Other factors are germane in a relationship alright, but you cannot thwart the importance of promises in a relationship. It cannot be left unsaid that, some relationships are perambulation on Safari desert, trying to find a stream.

Now, when it comes to the case of a promise to marry, there exists a 50-50 probability. In Africa, it is the men who promise to marry women. Because marriage is held in high esteem in our society––it is deemed that, a woman is fully complete when a man, through customary means, causes her removal from her father’s house.

Nonetheless, a promise from a man, to marry a woman might not be fulfilled. The man may later change his mind in the course of courtship or the relationship.

There has been a general uproar over the moral decadence of the Ghanaian society. One way of checking this moral decadence and bringing some sanity into our societal norms and practices is for the courts to give protection to persons who are genuinely abused and cheated in their relationship with their would-be “spouses”.

2. BREACH OF PROMISE OF MARRIAGE

In law, if someone fails to honour his or her promise, it's called a "Breach of Promise." The promise would become enforceable only if it complies with the elements of a contract. Breach of promise to marry is when after a mutual agreement or one partner proposing to marry the other, backs out of the promise. That means after the other partner has accepted the proposal, the offeror (the one who proposed) fails to carry out the promise. This incident gives a cause of action that can be pursued by the affected party.

According to Prof Mensa-Bonsu(Mrs) JSC, "An action for breach of promise to marry arises when a person makes a promise to marry another and refuses to perform. The refusal could be by conduct… or by an express refusal upon a request for performance. Unchastity does not operate as a defence unless it is unknown to the defendant. Otherwise, it only goes in mitigation of damages.”

Other Jurisdictions

In 1969, the English Law Commission came out with a report dubbed ‘Breach of Promise of Marriage,’ which was to deal, inter alia, with these issues. In 1970, it was given legislative effect. It became the Law Reform (Miscellaneous Provisions) Act of 1970.

Section 1(1) of the Act maintains that “An agreement between two persons to marry one another shall not under the law of England and Wales have effect as a contract giving rise to legal rights and no action shall be brought in England and Wales for breach of such an agreement, whatever the law applicable to such an agreement.”

Section 3 of the same Act, makes gifts of property returnable if it was agreed between the parties that, the gifts would be recoverable after the termination of the agreement. However, Before the making of the Law Reform (Miscellaneous Provisions) Act 1970, the position in England can be seen in the case of Frost v. Knight.

In that case, the respondent promised the plaintiff that, he would take her to the alter after the demise of her father. However, along the line, while the plaintiff's father was still alive, the respondent backed off from the engagement with the plaintiff. The plaintiff without wasting time sued the respondent for breach of promise of marriage. The court found in favor of the plaintiff, accepting the plaintiff’s contention that, indeed there is a breach of promise to marry.

It is thereby important to note that, the common law courts would only award damages but the courts cannot compel the party at fault to undertake specific performance.

The Cadego Civil for Spain, in Article 43 makes a promise to marry not legally binding or engagement legally binding if the other party fails to honour his promise. Nevertheless, Article 44 states that in a promise to marry which is done in writing and where the banns have been made known to the public, the party that terminates the agreement without reasonable reason would be compelled to compensate the innocent party.

France maintains the position of England and Wales in Article 180 of the Civil Code, that, an agreement to marry is not binding on the promisor. Italy also follows the same principle in Article 79 of the Civil Code. However, Article 81 makes the agreement binding if it was "made by public act or private writing" and that, the promisor would be liable if his reason for withdrawing from the marriage is not justified.

Article 80 of the Civil Code makes gifts exchanged to be returnable. Germany avers that an engaged person who backs out of the engagement must compensate the affected partner in the engagement and his or her parents for the losses incurred in view of the celebration of the marriage.

Therefore, whatever one spends in good faith towards the marriage must be paid by the other partner to the innocent party. Exchanged gifts are returnable.


3. THE POSITION OF GHANA ON BREACH OF PROMISE OF MARRIAGE

Whether or not you have a cause of action depends on the fact of the case. Prof. H.J.A.N. Mensa Bonsu stated in her article, “The action for Breach of Promise to Marry in Ghana: New life to an old rule” that, "The circumstances under which a promise of marriage would be inferred must also be given considerable thought to solve two problems: forestalling the situation of blackmail which discredited this action, and discouraging unscrupulous persons from taking advantage of others. …

On the whole, it is better for society to hold people to promises made – even of marriage - and to declare the parameters within which one may change one's mind without causing hardship to another."

Professor of Family Law in Ghana, Professor W. C. Ekow Daniels, has stated emphatically that “it is now beyond question that actions for breach of promise of marriage under customary laws are maintainable.” It is thus the case that, where a man or woman makes a promise of marriage to each other and then fails to carry it through, it is a cognizable wrong for which the court would give a remedy.

In the case of Djarbeng v. Tagoe, the respondent travelled to the UK to further his education. But before he departed, he was having a blissful relationship with the plaintiff of which a child was born to them. When the respondent returned, he failed to marry the plaintiff. The plaintiff sued him for damages for breach of promise to marry her. Under customary law, there wasn't any evidence to support the plaintiff's contention, but the evidence was adduced by a letter written by the respondent to the plaintiff, promising to marry her.

The court reasoned that a mere proclamation by the respondent to marry the plaintiff is not a binding contract. The court further contended that there was nothing to indicate that promise because the respondent was not there himself and there was nothing to symbolize such a promise. The court emphatically stated that such statements are not enforceable in a court of law.

And even though the defendant had written to say that he had finally made up his mind to marry the plaintiff, there was no evidence that the alleged promise had received the approval of the family. There was therefore no binding promise by the defendant to marry the plaintiff customarily.

In the case of Afrifa v. Class-Peter, the appellant presented a bible, ring, and gifts of money together with drinks to the family of the respondent. Class-Peter moved and settled with the appellant. Between 1969 and 1972, the respondent fixed several dates for the wedding, but each was postponed by himself setting up excuses.

The respondent caught him having an affair with a certain woman. She sued for breach of promise of marriage and she was awarded 2,000.00 old Ghana Cedis. Afrifa appealed at the Court of Appeal against the judgment contending that he and the respondent are already married.

The court of Appeal dismissed the appeal, stating that, under Ga customary law, the mere presentation of the bible and ring do not constitute marriage unless the customary practices governing marriage have been performed. In fact, the parties were not married according to custom.

The gifts of a ring and a Bible were unknown in customary marriage and no marriage custom had been performed. Mere cohabitation was not conclusive of the fact of marriage. Therefore, “A man seeking to marry a woman from a different ethnic group should ascertain the formalities requisite for validating his marriage. Failing to do this and even by Ga customary law he was in breach of his obligation to marry.”

In the case of Ama Serwaa v. Gariba Hashimu and Issaka Hashimu the court speaking through Prof Mensa-Bonsu(Mrs) JSC, stated that “It is not the law that for an action for breach of promise to marry to succeed, there must be a subsisting customary marriage, whose failure to be converted to an ordinance marriage, grounds the action.

Although that was the fact-situation in Afrifa v Class-Peter [1975] 1 GLR 359, that the defendant cited.” Thus, in the absence of customary marriage, a suit in breach of the promise of marriage can be maintained.

What happens when the partners acquired a property together in one of the partners’ names while in the relationship?

4. CONSTRUCTIVE TRUST (AN IMPLIED TRUST).

According to Halsbury’s Laws of England, “A constructive trust arises when, although there is no express trust affecting a specific property, equity considers that the legal owner should be treated as a trustee for another.

This happens, for instance, when one who is already a trustee takes advantage of his position to obtain a new legal interest in the property as when a trustee of leaseholds takes a new lease in his name. The rule applies where a person although not an express trustee, is in a fiduciary position …"

In simpler terms, where partners who are not married acquire a property together in any of the partners' names, the other partner would be treated as a co-owner of that property. Thus, where the parties did not expressly declare their intention, but their conduct and words depict that, they intended to own the property together. With this, the other partner would have a beneficial interest in the property.

According to Michael Haley and Lara Mc Murtry, Constructive Trust, “arises to prevent one party from resiling from an understanding as to the beneficial entitlements in circumstances where it would be unconscionable to do so. This will occur primarily where the estate owner has by words or conduct induced the claimant to act to his detriment in the reasonable belief that, in so acting, he will obtain a beneficial interest in the properties.”

In the case of Ama Serwa v. Hashimu and Another (supra), it was held that there must be two key ingredients to establish that there was a common intention as to what to do with the property. Prof Mensa-Bonsu(Mrs) JSC further stated that "where there is no evidence of an express discussion having occurred between the parties, the court must examine the conduct of the parties into some detail with the prospect of presuming a common intention to share beneficial ownership."

The court would find for the plaintiff if the plaintiff can convince the court that there was a common intention to share the property beneficially; the plaintiff must also demonstrate that he changed his position because of the unexpressed common intention.

The court may look at the conduct both prior to and subsequent to the acquisition of the property. The purpose of Constructive Trust in the case of a "Breach of Promise of Marriage" is to prevent unjust enrichment by one partner at the expense of the other partner. Thus, property acquired together in a relationship can be shared.

5. WHAT FACTORS WILL THE COURT CONSIDER WHEN CALCULATING DAMAGES?

The courts do not award damages haphazardly. They award damages based on the merit of the plaintiff. The courts take into account: the financial position of each individual prior to the promise to marry; an estimated projection of how the marriage would have financially affected each party; the financial and social standing of the defendant, which would provide an estimate of the lifestyle which the plaintiff would have enjoyed.

The court would also consider Physical intimacy; pregnancies, or children between the parties; emotional distress; loss of social standing; loss of future income; loss of virginity. In the case of Donkor v. Ankrah the court held that, where a man withdraws from an agreement to marry a woman who has had a child for him, he will be ordered to pay damages to her on the grounds that she may be less attractive to other men, having already had a child.

6. CONCLUSION

The courts in Ghana will be shirking their responsibility if they should deny injured persons from sour relationships a remedy. The court should therefore give adequate protection to victims of modern-day “Don Juans” who misuse and take for granted the largesse and courtesies extended to them by their concubines and their families. The court would award damages to the affected party but cannot compel the party at fault to undertake a specific performance such as marrying the other partner.

The constructive Trust principle would enable the other partner to have a beneficial interest in the property acquired during the relationship. But there is always a burden on the plaintiff to lead evidence that she contributed to the acquisition of the property.

Relationship these days has become a cauldron of disappointment and failure. Therefore, both parties must make their intentions clear and define the relationship ipso facto.