Against this background, marriage was under the jurisdiction of the ecclesiastical court. The ecclesiastical court would therefore compel a man who had made such a promise to go through with it.
Jurisdiction passed on to the Common Law Courts when the ecclesiastical courts were abolished. However the Common Law Court could only award damages but could not order specific performance.
Even though there are two schools of thought on the subject of whether Breach of promise to marry is a contract or tort, in our society today, it is grounded in both aspects of the law.
As the law developed, the basis for the action of breach or promise to marry was seen as:
a. Marriage has both physical and spiritual bond.
b. Virginity is the most priced possession of a woman
c. Women who are seduced needed to be compensated and similarly men who are tricked into parting with their monies must also be compensated.
The law looks at promise to marry as a decision between two consenting adults; the one who promises (promisor) and the one who accepts the promise (promisee). The promise can be verbal when the parties exchange the promise and acceptance orally. It is constructive when by the action of the promisor, he or she makes the whole world to believe that there will be a future marriage between the two. This could show itself in the two, being introduced as man and wife at a party or the promisor taking charge and paying for the education or apprenticeship of the promisee.
The promise may be conditional, in which case there must be evidence of fulfilment of the condition before an action for the breach would lie. Where there is a general promise of marriage, an intention to perform within a reasonable time would be inputted.
Breach of the Promise
There are several ways by which a person may be deemed to have breached or neglected to fulfil the promise to marry:
1. It could be by communication to the plaintiff or a third party.
2. If it is found out that the promisor is already married he or she is legally barred from performing.
3. If the conduct of the promisor indicates that he or she does not intend to perform, this is known anticipatory breach.
4. The promise may also be caught by public policy. Example, when the promisor tells the promisee:” when I divorce my wife or she dies, I will marry you”
The promise would be unenforceable when it is caught by public policy. Example is when a promisor tells the promisee “when I divorce my wife or she dies I will marry you. The law finds it repugnant; the idea is that the promisee would be waiting anxiously or prayerfully for the death of the promisor’s spouse for his or her contract to be ready and due. Similarly, a promise of divorce may encourage divorce between couples.
There are a few defences for a person who breaches a promise to marry.
1. As already stated, public policy will render a marriage unenforceable and it could be raised as a defence in court. the law disenables the defendant from taking advantage of his or her own wrong, i.e. protect the promisor from being sued, it disables the plaintiff from benefiting likewise, However to fall out of love or opposition from family members is no defence.
2. Unchastity of plaintiff, if proved can be raised as a defence. It however operates as a defence if the act is concealed from or unknown to the promisor at the time he made the promise.
3. An agreement to pay compensation to the promisee can serve as a defence.
4. Even though physical, illness, mental illness and contagious diseases perse do not constitute a good defence when there is a possibility of death within a short period of time or one is infected with a dangerous disease, it is serving as defence.
5. Epilepsy and impotence can only serve to mitigate assessment of damages.
Where an action is upheld damages are at large and assessed by the court in three categories: compensatory, aggravated and punitive damages.
1. Compensatory damages may be awarded to a promisee for mental distress, loss of reputation, loss of economic advantage that the marriage would have conferred, social disgrace, injured feelings, expenses incurred in anticipation of a marriage and loss of future prospects to marry. The list is not exhaustive.
2. Aggravated damages – This may be awarded for (a) improper conduct of the defendant before the breach. A typical example is seduction as a result of the engagement. (b) Non disclosure of sexually transmitted diseases on the part of the defendant. (c) Unfounded allegations of unchastity by the defendant during the trial may also attract aggravated damages.
3. Punitive damages – Where fraud and malice is proved in a trial, this kind of damages is awarded. If the motive of the Defendant in getting engaged was to seduce the plaintiff or to serve the vanity of the defendant as in the case Tramuel vs Vaugham where the defendant main motive was to show his friend that the plaintiff was accessible to him. It could also be that the aim of the defendant was to trick the plaintiff to part with money or property.
Factors such as lack of feelings for the defendant, opposition of the plaintiff’s family to the match, infirmity of a permanent nature or a disease of genetic kind in the plaintiff’s family of which the defendant becomes aware of after the engagement are only mitigating factors.