WHAT ARE THE DEFENSES TO BREACH OF PROMISE TO MARRY

WHAT ARE THE DEFENSES TO BREACH OF PROMISE TO MARRY

In a situation where there is a breach of promise to marry, the party in breach could have some defenses, depending on the circumstances. The Matrimonial Causes Act provides instances where a marriage will be rendered void. In Oghoyone v. Oghoyone, Rhode – Vivour, JCA (as he then was) stated that “A void marriage is a marriage that produces no legal consequences. That is to say it is a marriage that never took place.” In other words, in the eyes of the law, there is no marriage ab initio. The said section provides as follows:

Void marriages and prohibited degrees of consanguinity

(1) Subject to the provisions of this section, a marriage that takes place after the commencement of this Act is void in any of the following cases but not otherwise, that is to say, where‐

(a) either of the parties is, at the time of the marriage, lawfully married to some other person;

(b) the parties are within the prohibited degrees of consanguinity or, subject to section 4 of this Act, of affinity;

(c) the marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriages;

(d) the consent of either of the parties is not a real consent because ‐

(i) it was obtained by duress or fraud; or

(ii) that party is mistaken as to identity of the other party, or as to the nature of the ceremony performed;

(iii) that party is mentally incapable of understanding the nature of the marriage contract;

(e) either of the parties is not of marriageable age.”

From the provisions of section 3(1)(a) – (e) of the Matrimonial Causes Act reproduced above, it is clear that under those circumstances, even where there is a marriage and not just a promise to marry, such will be rendered void. Also, the grounds for dissolution of marriage are set out in sections 15 and 16 of the Matrimonial Causes Act. It is most respectfully submitted that the grounds stated in the two sections will also avail a Defendant as defenses in an action for breach of promise of marriage. Therefore, where there is a promise of marriage only to discover any of the circumstances listed sections 3, 15 and 16) of the Matrimonial Causes Act, the other party who was not aware of such at the time of agreement or promise could, actually, justifiably, renege on the promise of marriage. He/she cannot be liable for breach of promise to marry even if it was shown that he/she entered into such agreement with prior knowledge of the offending situation. Few other defenses are listed as follows:

DECEIT/MISREPRESENTATION:

When a party sets out with the aim of deceiving the other party into a promise to marry, and the other party reneges on this ground, the latter cannot be sued for breach of promise to marry. Nowadays, we have instances of people undergoing surgery that radically changes their appearance, use of excessive make-up to cover a badly scarred face, and lots more. In instances like these, where a promise is based on deceit as a result of which the aggrieved party goes back on his/her promise after discovery, the promisee cannot sue for breach. Again, it is common nowadays to see transgenders who have had to undergo surgeries to change from their original sexes. If the innocent party discovers for instance that the person he/she promised to marry was originally of a different sex, he/she would be justified to renege on his/her promise.

II. INFIDELITY:

Where a party, whether a man or a woman, discovers (with proof, not mere speculations) that the other person is not faithful but is busy messing/sleeping around, such party can opt out of the agreement to marry.

III. ILLNESSES AND DISEASES:

Where a party is suffering from diseases that makes it impossible to marry e.g., mental disorder, it can be a defense to breach of promise to marry.

WRITTEN BY: CHAMAN LAW FIRM TEAM

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