Breach of Promise to Marry

Introduction:

This note will discuss when there is a breach of promise to marry, types of breach of promise to marry, the remedy available to a man or woman when there is a breach of promise to marry, what a party must prove to succeed in an action for breach of promise to marry, and the defences available to the party in breach.

When there is a Breach of Promise to Marry:

In a previous note, it was stated that marriage is a special kind of contract. Before the existence of that contract, a party promises to marry another who accepts the proposal. When that party fails to perform the promise, there is said to be a breach of promise to marry.

According to Mensa-Bonsu in “The Action for Breach of Promise to Marry in Ghana: New Life to an Old Rule” at page 44,

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.

The Supreme Court cited this with approval in Serwa v. Hashimu and Another [2021] GHASC 3 (14 April 2021), where their lordships added that:

It is thus the case that where a man or woman makes a promise of marriage to another and then fails to carry it through, it is a cognizable wrong for which the court would give a remedy.

Their lordships appear, however, to have limited the operation of breach of promise to marry to instances where a man fails to marry a woman after promising to do so. The basis for this, it is respectfully submitted, is that men often make promises to marry, and the numerous actions in our jurisprudence on breach of promise to marry concerned a man failing to marry a woman after (allegedly) promising to do so.

Types of Breach of Promise to Marry:

There are two types of breach of promise to marry:

1. Anticipatory Breach: Under the general law of contract on breaches, there is anticipatory breach if a party indicates his/her unwillingness to perform a contract before performance is due. The concept of anticipatory breach may also be understood as the repudiation of a contract before the time for performance. In the context of marriages, if a person promises to marry another person at a particular date but indicates his unwillingness to proceed with the marriage before that date, there will be an anticipatory breach of promise to marry. There are two ways in which an anticipatory breach will occur:
1. Express anticipatory breach: Here, the party in breach makes it clear to the other party that he does not intend to perform his obligations on the contractual date of performance. In the case of Frost v. Knight (1872) LR 7 Exch 111, the defendant, who was engaged to the plaintiff, promised to marry her after his father’s death. He, however, broke off the engagement while his father was alive. There was an issue of whether she could sue him for damages before the time agreed for performance, which was after his father’s death. It was held that she could sue, as the defendant had made it clear that he did not intend to perform the contract even after his father’s death.
2. Implicit anticipatory breach: Here, the party in breach acts in a way that puts it out of his/her power to perform the contract. For instance, if a man promises to marry a woman on 20^th February, 2026, but marries another woman under Ordinance on 19^th February, 2026, he would have effectively put it out of his power to fulfil his promise on the 20^th of February, as marriage under Ordinance is monogamous. He cannot legally marry on the 20^th.
2. Non-Performance: This type of breach occurs when a person who promises to marry another person fails to do so when the time slated for performance is due. The case of Aning v. Kingful [1980] GLR 404 can be used as authority for this type of breach. In that case, the defendant admitted in his statement of defence that he “agreed to formalise their marriage in the future by a church wedding if and when [his] financial position would allow, as is the practice among many Ghanaians and hence the presentation of the Bible and ring.” The court was of the view that following the defendant’s employment as a foreman, his financial situation had improved, and his failure to marry the plaintiff amounted to a breach. That is, the time for performance was anytime the man’s financial position improved. His failure to marry the woman after his financial situation improved amounted to a breach.

Remedy Available for Breach of Promise to Marry:

1. Damages for the Breach:

Where a party fails to perform a promise to marry, the only remedy available to the injured party is an action for damages. The courts will not grant specific performance and order the party in breach to perform the promise to marry.

This remedy is to compensate the injured party for any injuries suffered. In the case of Mariam Obeng Mintah v. Francis Ampenyin [2010] DLCA6228, the court noted the following injuries likely to be suffered by a woman:

In breach of promise to marry some injury would have occasioned one party one way or the other. The woman would have lost her virginity, lost her social status, having been so jilted. We cannot discount the emotional trauma she would have to go through.

The essential question is, what factors may be considered in the award of damages? In the case of Donkor v. Ankrah [2003-2004] SCGLR 125, the Supreme Court stated the following factors:

In respect of damages, I think the Plaintiff is entitled to some measure of this. This is because from the evidence on the record the relationship between the parties was so notorious within the small community in which they cohabited that everybody is bound to know it. This is likely to take the Plaintiff off the marriage market and thereby affect her eligibility and suitability to get a partner. In this particular case for example the Plaintiff has been blessed with the birth of a son for the Defendant. This is an additional baggage that the Plaintiff must of necessity carry into a new relationship. This by itself is not an attraction to an eligible bachelor and may detract from the usual things that attract men to women. She may lose colour, may not kick and glitter before the birth of the child which is her second.

That is, the court may consider the following factors:

1. The extent to which the promise has affected the marriage potential of the injured party (the plaintiff).
2. Whether there is a child between the parties.

2. Recovery of Gifts Given in Contemplation of Marriage Following a Breach:

In an action for breach of promise to marry, the injured party may also be able to recover a gift given to the party in breach in contemplation of marriage.

In the case of Stangler v. Epler, it was held that:

A gift to a person to whom the donor is engaged to be married, made in contemplation of marriage, although absolute in form, is conditional; and upon breach of the marriage engagement by the donee, the property may be returned to the donor.

In Jacobs v Davis, Shearman J. held that a woman who had broken the contract must return the wedding ring, for it is in substance a pledge, given upon the understanding that a party breaking the contract must return it.

What a Party Must Prove to Succeed in an Action for Breach of Promise to Marry:

In the case of Amoako v. Abraham Otchere [2025] DLHC18330, the court stated what a party must establish to succeed in an action for breach of promise to marry. It said:

On the authority of the law, for a party to succeed in an action for breach of promise to marry, there must be evidence of:

1. an agreement to marry and
2. that the defendant had breached that agreement.

It is, however, essential to note that the court will only hold that there was an agreement to marry if the promise to marry was seriously made. In Mariam Obeng Mintah v. Francis Ampenyin (supra), the court explained that:

…what should be sought for in a successful action for a breach of promise to marry should be whether there was such a promise, not a mere statement casually thrown about in a pinpointless manner.

In light of this understanding, where the man has casually said he will marry the woman and the circumstances indicate the statement was not made seriously, the courts are unlikely to find a breach of promise to marry. In the case of Djarbeng v. Tagoe [1989-90] 1 GLR 155–161, for instance, the plaintiff instituted an action for damages for breach of promise to marry. In 1972, the defendant entered an amorous relationship with the plaintiff, and they indulged in a sexual relationship, as a result of which the plaintiff became pregnant. The defendant left the country for further studies in the United Kingdom. The plaintiff claimed that before the defendant left for the United Kingdom, he had promised to marry her. The defendant denied any such promise and argued that even if there was such a promise, he was entitled to rescind it in view of the plaintiff’s subsequent behaviour. The main issue is whether there was a promise to marry. The court stated that:

There is no doubt that in the initial stages of amorous relationships, the parties are so imbedded in their love that utterances are made by one party to another so as to sustain the relationship.  Such utterances being often more of fantasies than of reality. One cannot doubt that among such utterances are statements such as: “I love you more than anything else”.  “I will live and die with you”, “I promise to marry you and you alone”.  As I have said earlier, many of these are not serious utterances.

Although the defendant had at one point written to the plaintiff, stating, “I have finally made up my mind to marry you,” the court held that this did not amount to a serious promise to marry under customary law. Under customary law, a man who desires to marry a woman applies to the woman’s family through his own family for their consent. In the present case, there is no evidence that the parents of the parties had consented to any such promise to marry. The court consequently concluded that there was no binding promise to marry.

Defences Available to the Party in Breach:

1. Bad Character:

If a party that promises to marry another party subsequently discovers some bad character in that person, he may be able to use it as a defence. For instance, if a man promises to marry a woman and subsequently discovers that she has a predisposition to abuse men, he may be able to use it as a defence.

2. Action is Statute-Barred:

In Section 4(1)(b)(c) of the Limitation Act, 1972 (NRCD 54), it is provided that:

a person shall not bring an action after the expiration of six years from the date on which the cause of action accrued, in the case of…an action founded on a simple contract; or an action founded on a quasi-contract

Where a person promises marriage to another person and breaches his promise, the injured party must institute an action within six years from the date of the breach. Failure to institute the action within this period bars the injured party from subsequently instituting the action.

In Amoako v. Abraham Otchere (supra), the appellant and the respondent ended their amorous relationship in 2004, and the respondent allegedly cancelled their pre-arranged wedding. In 2017, the appellant instituted an action against the respondent for a declaration of title to land, among others, and the respondent counterclaimed for damages for breach of promise to marry. The court held that it was barred by Section 4(1)(b)(c) of NRCD 54.

3. Fraudulent Misrepresentation:

In the case of Derry v. Peek [1889] UKHL 1, Lord Bramwell characterised fraudulent misrepresentation as:

Knowingly and fraudulently stating a material untruth which brings about wholly or partially the contract.

If the injured party knowingly and fraudulently states a material untruth which causes the party in breach to make the promise to marry, the party in breach may rely on that to rescind the promise. For example, if a woman says she has no children, and a man promises to marry her on that basis, it will amount to a fraudulent misrepresentation, as she knowingly and fraudulently stated a material untruth that caused the man to promise her marriage.

According to Snell’s Equity, 34^th ed., “rescission has long been available for fraudulent misrepresentation both at law and in equity.”

4. Insanity:

Where a party becomes insane after promising to marry another person, he may be able to rely on the insanity in an action for breach of promise to marry. According to Offei in Family Law in Ghana, on page 13,

…supervening insanity of either the plaintiff or defendant such as to incapacitate him or her from performing the contract, constitutes a good defence.

5. Mutual Withdrawal:

The man and the woman can mutually decide not to proceed with the marriage after the promise of marriage has been made. If such a decision is made, any subsequent action for damages for breach of promise to marry is likely to fail.