The courtship phase and the decision to tie the knot are significant events in the lives of those who chose this path with their romantic partners. A couple is said to be betrothed if they mutually agree to marry each other. Unlike marriage, engagement does not establish or impose mutual rights and responsibilities under the law. Thus, when a breach of betrothal occurs, can the wronged party file a lawsuit against their fiancée, who turned their back on them? The quick answer to this question is, yes, they can. The legal alternative to a distraught fiancée is to file a legal action against their ex for breach of betrothal. In many situations, the facts of the case and factors such as perspective, intention and the order of events will determine the lawsuit’s outcome.
Definition of betrothal from the legal perspective
In literal terms, betrothal is an engagement, agreement, or promise to marry. Technically, it is a general rule of agreement to marry under the principles of the law of contract. In Malaysia, the existing general rule of betrothal is formulated from the common law in England and exercised through the Malaysian Contract Act of 1950.
Position under the common law of England
The position of breach of betrothal under the common law can be seen before and after the coming of Law Reform (Miscellaneous Provisions Act 1970) (“LRMPA 1970).
Before the LRMPA of 1970 took effect, a breach of betrothal may or could not be enforced depending on the type of party involved.
PROMISE BY A MARRIED MAN
A promise made by a married man is VOID because it violates public policy. The act of a married male becoming engaged to another woman would constitute bigamy, which was illegal at the time. The promise is also unenforceable if made under conditions such as the death or divorce of the promisor’s spouse. In the case of Wilson v. Carnley, a promise made by a married man during his wife’s lifetime to marry the plaintiff after his wife’s death was ruled unenforceable because it violated public policy. The engagement is null and void, so he cannot be held accountable if he breaks his promise to marry the plaintiff. However, if the plaintiff was unaware of the defendant’s marital status, they could still file a breach of promise to marry claim against the defendant.
PROMISE BY A SINGLE, UNMARRIED PERSON
A promise made by someone unmarried is enforceable as long as it is supported with valuable consideration. Thus, they can be held accountable if the promise to marry is broken. In the case of Short v. Stone, the defendant, a bachelor, pledged to marry the plaintiff after the death of the defendant’s father. However, the defendant renounced the promise during the lifetime of his father. The court ruled that the plaintiff could file a lawsuit even though the contract was to be carried out at a later date.
AFTER the LRMPA 1970, actions for breach of promise to marry became uncommon. Implementing Section 1 (1) of the LRMPA of 1970 stipulates that no agreement to marry shall be enforceable as a contract and that no action may be brought for breach of such an agreement, regardless of where it was made.
Position in Malaysia
There are no express provisions relating to betrothal in Malaysia. A promise to marry in Malaysia is treated as a legally binding contract (if the elements of a contract are fulfilled) and is recognised under the Contract Act. For that, a breach of promise to marry is dealt with under the Contract Act 1950. The applicable provisions under the Contract Act 1950 are sections 10,11, 12 and 24, which relate to the capacity, consent, and consideration of both parties to the contract of promise to marry.
Promise by a Married Person
A promise made by a married individual is unenforceable because it defies public policy and morality. If the plaintiff was unaware of the defendant’s marital status, the promise to marry made by a married man or woman is actionable. In Mary Joseph v. Ariokiasamy v. A.G., the High Court permitted the plaintiff to recover damages because she was unaware that the defendant was married, having been told that he was a widower.
Nafsiah v Abdul Majid
In this case, the plaintiff sued the defendant for breach of betrothal, alleging that the defendant seduced her. The court ruled that the plaintiff’s knowledge that the defendant was already married did not invalidate the promise because, as a Muslim man, the defendant was permitted to have multiple spouses. There is no question of the promise being immoral since the personal law of the plaintiff allows the taking of more than one wife.
Oh Thevesa v Sia Hok Chia [1992] 1 MLJ 215
The plaintiff sued the defendant, who was already married, because he broke his promise to marry the plaintiff. The defendant disputed that he had said he would marry the plaintiff, and he also argued that the plaintiff knew that he was already married during their relationship. Since it was unclear from the affidavit when the plaintiff found out about the defendant’s marriage status (before or after the promise was made), the court decided that the plaintiff’s action could be dismissed because it was immoral and against public policy.
Promise to marry made by unmarried persons.
A promise to marry made by a non-married person is enforceable if it is supported with valuable consideration.
Nagamah d/o Subramaniam lwn Ponnusamy s/o Rajoo
Plaintiff testified that she had 31 sexual encounters with Defendant in the belief that they were in love and with the intention of marrying. Nonetheless, the defendant ultimately broke his promise to marry her. She is now a bachelor in status and has been stigmatised by the incident, which has caused her mental anguish and loss of reputation, name, and dignity. The court ruled that the plaintiff had established a claim against the defendant and ordered the defendant to pay RM50,000 for breaking his promise to marry the plaintiff. In addition, the judge ordered the defendant to pay RM20,000 for the mental distress, loss of reputation, name, and honour of the plaintiff and the cost of the proceedings.
What can be claimed and compensated if your fiancée left the relationship?
Section 15 of the Islamic Family Law Act (IFLA)* provides that:
“If any person has, either orally or in writing, and either personally or through an intermediary, entered into a betrothal in accordance with hukum syara’ and subsequently refused without a lawful reason to marry the other party, the other being willing to marry, the party in default shall be liable to return the betrothal gifts, if any or the value thereof and to pay whatever money has been expended in good faith or for the other party in preparation for the marriage and the same may be recovered by action in the court.”
*IFLA only applies to Malaysian Muslims, but the provisions are adopted and referred to in civil court concerning the breach of betrothal between non-Muslim parties.
Damages in action for breach of betrothal are not based on a fixed standard and are wholly at the court’s discretion. Exemplary damages may be awarded, increased, or reduced based on the parties conduct. In the event of a breach of betrothal, the aggrieved party is entitled to recover all expenses incurred in the preparation and contemplation of the marriage, such as deposit money for the wedding venue, cost of the bridal attire, booking made for honeymoon, cost for their wedding rings, etc. (provided that all costs can be proven through invoices and other documentary evidence.) The court may also award damages for the humiliation and disgrace the aggrieved party endured as a result of the other partner breaking off the engagement.
Summary
- A promise by one party to marry another is not legally binding until the other party also promises to marry the first party, thereby creating a legally enforceable contract between the parties.
- A man and a woman may take action for breach of promise to marry. Both parties must consent to the contract and also can enter into a valid contract.
- A contract to marry does not need to be evidenced by writing or even that express words should make the mutual promises; so long as a promise to marry is supported by some valuable consideration, it will be enforceable even though the promise has not, in turn, made an express promise to marry the promisor. (what Malaysian law says about the oral contract) Thus, a breach of promise is maintainable in Malaysia and affords a right to the innocent one to seek compensation from the one in default.
