Group assignment 1

FAMILY LAW 1

NAME REG SIGN

SEBALU ROGERS……………………………. AKM23B11/138 ……………

SSALI JUNIOR………………………………… AKM23B11/ ……………
GIZENGA CHRISTO WILLOW…………… AKM23B11/048 …………….
SSENKUBUGE DAVID………………………. AKM23B11/144 …………….
KIIGE BEN……………………………………… AKM23B11/075 …………….
ABAHO PROMISE……………………………… AKM23B11/001 ……………
EJANG PATIENCE MICHELLE……………… AKM23B11/046 …………..
AKANKWATSA CRIMIA…………………… AKM23B11/013 ……………
AKATUHEBWA RONALD…………………… AKM23B11/014 …………….
BWAMBALE HENRY ASINJA……………… AKM23B11/043 …………….
AKAYO PAULINE CHRISTINE …………………. AKM23B11/ …………….
Lecturer: MRS PATIENCE TUSINGWIRE
Question: Breach of promise to marry
Submitted on 16th/09/2024

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 LIST OF AUTHORITIES
Article 31 (1) of the constitution of the republic of Uganda 1995 as amended
Cases
Mifumi and ors v Attorney General and another [2014]
Fender v St. John Mildway [1938] 3 ALL ER 402
Ezeanah V Attah [2004],
Woodman v Woodman (1892) on the principle of acceptance of offer to marry
Harvey v Johnson [1848] 6 CB 195: on the prince of consideration as one of the ingredients
Larok v Obwoya (1970): on the principle of failure to maintain an agreement to marry
Hall v Wright:
Tumwine v Kyarikunda
Fazaldin Satardin vs. Din Mahomed and Hajra Begum [1928: addressing issue of gift between
engaged couple
Spiers v Hunt (1980): addressing the principle on limitation to marry
Vishram Dhanji vs. Lalji Ruda [1957] 1EA 110:
COHEN VS SELLAR (1926) 1 K.B 536
Jacobs v Davis [1917] 2 KB 532

Articles
Breach of Promise to marry by Professor Edwin W Hadley

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BREACH OF PROMISE TO MARRY.
According to Professor Edwin W Hadley in his article, ‘’Breach of Promise to marry’’, he
defined a promise to marry as a commitment made by one person to another that they will get
married. He further asserts that a promise to marry must be fulfilled within the given time or
where time has not been stipulated, a reasonable time takes precedent.
Article 31 (1)1 provides that for someone to qualify to marry must be of 18 years and above.
This was cemented in the landmark case of Mifumi and ors v Attorney General and another
[2014]2 where Supreme Court distanced itself from customary laws which qualified a 16 years
old age person to marry contrary to Article 31 (1) (supra).
A promise to marry by a minor is voidable at the option of the minor. A minor may sue on such a
promise but may not be sued. It is imperative to note that in the case of Fender v St. John
Mildway [1937] 3 ALL ER 4023, court observed that a promise to marry by someone already
married is actionable per se if the plaintiff had knowledge that the defendant is married and in
this case, the defendant being married didn’t relieve him of liability.
The following are the types of breach of promise to marry and include;
a) Non – performance breach.
This refers to where a person fails to fulfill their obligation to marry another upon a fixed
condition. For example, failure to marry another at an agreed given date.

b) Anticipatory breach.
This is where a person may refuse or turn down their promise to marry or get another
person without communicating to the other party.

In the case of Ezeanah V Attah [2004]4, the supreme court of Nigeria discussed the elements
of breach of promise to marry and include;
1. The party must prove to the satisfactory of the court that there was in fact a promise to
marry. Here the court looks at;
a) Capacity to marry.

1
1995 Constitution of the Republic of Uganda as amended.
2
Mifumi and ors v Attorney General and another [2014]
3
Fender v St. John Mildway [1937] 3 ALL ER 402
4
Ezeanah V Attah [2004]

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 Article 31 [1] (supra) qualifies someone to marry if he or she is 18 years and above.
This same position was affirmed in the case of Mifumi and others v Attorney
General and another5 where the supreme court distanced itself from 16 years of age
which were stipulated by the customary laws to 18 years as the constitution provides.
b) Offer by either the woman or man.
c) Acceptance of the offer.
In the case of Woodman v Woodman (1892)6, court held that the plaintiff failed to
satisfy the breach of promise to marry basing on three letter evidence and thought the
silence of the defendant amounted to acceptance.

d) Consideration.
In the case of Harvey v Johnson [1848] 6 CB 195 7, court held there was good
consideration when the plaintiff travelled to Lisahoppin as requested by the defendant
for purpose of marrying her but the defendant failed to carry out his promise.
2. That the other party has failed or refused to keep the agreement of the promise to marry
In the case of of Larok v Obwoya (1970)8, court observed that the appellant failed to
fulfill the promise to marry the respondent yet she was made pregnant by the appellant
and the respondent was awarded 2000 shillings as damages.

In the same case of Ezeanah v Attah, the Supreme Court also observed that mere
conversations and romantic relationships without more actions are not enough for court to
find an agreement to marry. The court also stated that where there is absence of written
agreement, court will look at the institution of marriage according to society, person
behavior in order to prove breach of the promise to marry. For example proposal, time
spent in courtship, introduction to friend, to parents and engagements.

5
Supra ……………….2 ………….. pg 3
6
Woodman v Woodman (1892)
7
Harvey v Johnson [1848] 6 CB 195
8
Larok v Obwoya (1970),

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 Promise to marry after a decree nisi
This normally happen when there is enforceability of a promise to mary made during
ongoing divorce proceeding but the promise is breached.
In the case of Fender v St. John Mildmay 1938 AC 1, court observed that a promise to
marry after a decree of nisi could be biding as it indicates that the marriage will likely
end, even the divorce is not technically complete.

Defenses under breach of promise to marry.

1. Fraudulent misrepresentation.
This is where one may deceitfully refuse to disclose their marital status to another
hence one relaying on their statement and accepting the offer to a promise to marry.
In the case of Wharton v Lewis9, the defendant argued that was misrepresented by
the plaintiff’s brother that she was to inherit her father property but it was found out
that the father had sold all the property to cover the debts and the defendant had a
question about the plaintiff’s life while living in oxford. Court held the defendant
breached the promise to marry when he refused to marry the plaintiff.

2. Infidelity or unfaithfulness.
When using this as a defense, one must prove that the other party to the agreement
was caught or seen in the act or pregnant.

3. Illness or body infirmity.

This is where one of the party is suffering from a physical mental incapacity
preventing them from doing the marital duties. For example, can’t give birth,
impotent man or suffering from incurable diseases like HIV.
In the case of Hall v Wright10, the defendant stated that he had a serious illness
after being warned by the doctor that having sexual intercourse will endanger his life.
Court held marriage doesn’t necessarily mean to just have children only. The wife
may want happiness.
9
Wharton v Lewis
10
Hall v Wright

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Remedies.
1. Damages.
Court looks at the time spent in courtship, child involved which may affect the
woman’s market value, reputation lost in the eyes of reasonable persons, emotions
involved and resources used involved.

In the case of Tumwine v Kyarikunda11, court awarded 10m for the plaintiff
when the defendant breached the promise to marry claiming the plaintiff to be so
old yet he had paid for her tuition since university. Similarly, in the case of Larok
v Obwoya (1970), the respondent was awarded 2000 shillings as damage when
the appellant left her pregnant and refused to fulfill the promise to marry.

Limitations under breach of promise to marry

A person can’t rely on the common law principle of breach of promise to marry if there are;
a) Minor below 18 years of age.
b) Customary law (polygamy)
c) Acts against public policy (promising one that you will marry her after death
or divorce of a spouse)

In the case of Spiers v hunt (1980)12, court decided in favor of the defendant who had promised
to marry the plaintiff upon the death of his wife, however after 8 years the defendant refused to
marry the plaintiff who eventually sued the defendant for breach of promise to marry. This was
declared illegal due to the incapacity of the defendant being a married man not a single person as
required.

GIFTS BETWEEN ENGAGED COUPLES

Under Islam, agreements to marry may be made between parents of intended spouses. Gifts
exchanged between the two families can be returned if the agreement to marry is broken. In

11
Tumwine v Kyarikunda
12
Spiers v hunt (1980),

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Fazaldin Satardin vs. Din Mahomed and Hajra Begum [1928] 13, the girl's father agreed to
marry off her daughter without her consent and she later refused to marry the prospective suitor.
The prospective suitor sought to restrain her from marrying any other man until he had recovered
all his damages and gifts he had given. Court held that he could only recover the gifts he had
given and not damages.
The position is similar under Hindu law as was discussed in Vishram Dhanji vs. Lalji Ruda
[1957] 1EA 11014 , where the respondent's son and the appellant’s daughter in 1938, being each
only a few old , were betrothed in India according to the rites and customs of the Hindu
community. Gifts were given by the respondent to the appellant for the prospective bride
according to the Hindu custom. When she was 12, she indicated that she did not wish to marry
the respondent's son and when she was 15, the respondent was informed that the engagement was
broken off. The respondent sued for damages for breach of contract and was awarded special and
general damages plus an order for the return of certain gifts

At common law, a gift made by a party for an engagement to the other party in contemplation of
marriage could not be covered by the donor if even if he was in breach of the engagement
without legal justification, he could not recover the engagement ring but he do so if the woman
was in breach of the contract.
COHEN VS SELLAR (1926) 1 K.B 53615
The plaintiff, Miss Cissie Cohen, aged 24, had been engaged in business, and was a young
woman of obvious ability. The defendant, Nathan Sellar, aged 27, occupied a clerical post at a
moderate weekly salary. Each belonged to the Jewish faith. In August 1923, they agreed to
marry, and in December 1923, the defendant handed to the plaintiff a single-stone diamond ring
worth £30. No express condition accompanied the delivery of the ring. It was,
however, admittedly given and received as an engagement ring in contemplation of marriage.
The 1926 English High Court decision of Cohen v Sellar provides a clear set of rules regarding
who is legally entitled to an engagement ring. Essentially, the person at fault for breaking off the
engagement loses any entitlement to the ring

13
Fazaldin Satardin vs. Din Mahomed and Hajra Begum [1928]
14
Vishram Dhanji vs. Lalji Ruda [1957] 1EA 110
15
COHEN VS SELLAR (1926) 1 K.B 536

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In conclusion, the court in the case of Jacobs v Davis [1917] 2 KB 532 16 held that the
defendant’s breach of contract or promise to marry can make the plaintiff to recover some
damages. Court also made it clear that if the defendant breaches a promise to marry, must return
the engagement ring and it is a conditional gift which is returnable if the marriage doesn’t
happen and if a man fails to carry out a legal justification to carry out his promise to marry, he
can’t claim the engagement ring.

16
Jacobs v Davis [1917] 2 KB 532