FAMILY LAW 1.2 CONTRACTS TO MARRY
- Under statutory.
- Under customary.
UNDER STATUTORY MARRIAGES
After the promise, the ceremony of marriage and then the union for life. The promise can be ORAL or in WRITING. The mutual exchange of promises is regarded as the consideration and the consensus ad idem. Havey V Johnson 1848 6 cd 295 136. Er 1265. It should refer to a monogamous marriage.
For the contract to be valid, the parties must possess certain capacity so as not to be void. Section 3 of the MCA.
Capacity to marry;
- Possess a single status.
- Not within the prohibited degrees of affinity or consanguinity.
- Be of age.
- Genuine consent must have been given.
- The marriage must be between a male and a female in Nigeria. Check the Same Sex Marriage Prohibition Act.
Section 35 of the marriage act provides that one cannot contract another marriage while in a subsisting one. Doing such can amount to bigamy.
Spiers V. hunt the court refused to enforce a promise of a married man to marry another lady who knew he was married on grounds of public policy and the doctrine of ex turpi causa non oritur action.
Fender v. St John Mildmay the court upheld the promise by a married man to marry on the basis that the decree nisi obtained for his subsisting marriage showed that there was little left of the marriage.
The promisee can plead that she was ignorant of the promisor’s marital status and that she is not in pari delicto.
Section 3 of the Matrimonial Causes Act also goes states that such marriages are invalid.
At common-law, only contracts for necessaries could be enforced against an infant. (Section 5 Infants Relief Act, Nash v. Inman, Labinjoh v. Abake). Section 22 of The Child Rights Act specifies 18 as the age of majority.
Section 362 of the Criminal Code makes it an offence punishable by 7 years to forcefully marry someone.
Section 48 of the Marriage Act makes it an offence punishable by 2 years to marry a minor one below 21 without the consent of the parent.
CONSENT OF THE PARTIES AND PARENTAL CONSENT.
Consent of the parent is not needed when the parties are of marriageable age. 21 Ugboma V. Morah.
The defendant contended that since there was no parental consent, his promise to marry the lady was ineffective. The judge rejected his contention as they were both of marriageable age.
Osawoyin v. Osawoyin.
The claimant should prove that;
- The defendant made a voluntarily promise to marry the plaintiff.
- The promise was not kept.
The plaintiff may corroborate the allegation with evidence.
The breach may be in the form of,
- Anticipatory breach.
NON-PERFORMANCE occurs when the promisor absconds on the fixed date or fails to perform within a reasonable time.
Martins V. Adenugba.
On the fixed date for the marriage, the defendant went into the marriage registry alone (without the plaintiff) and came out declaring that they have been married. The plaintiff believed him and cohabited with him for 3 years. She was entitled to recover damages.
Where the promise is conditional, it is inoperative until the condition has been fulfilled.
Aiyede v. Norman-Williams.
The defendant promised to marry the plaintiff if he could obtain his father’s consent. The court held that failure to get the fathers consent invalidated the promise.
ANTICIPATORY BREACH: where the defendant declares his intention not to perform or he willfully makes it impossible to perform his promise. For example, by marrying someone else.
Uso v. Oketubosun
The defendant went ahead to marry another lady after promising to marry the plaintiff. It was held to be a breach of the promise to marry.
DEFENSES TO BREACH OF A PROMISE TO MARRY.
The promissor may then allege that,
- The promise was obtained by fraud, duress or misrepresentation.
- The promise has been dissolved by mutual agreement.
- A Discovery after the promise, of a permanent infirmity that can render the plaintiff unfit for marriage. Mere suspicion is not enough. Based on the facts of the case. Can the defendant claim that he is infirm? In Hall v. Writh the judges were divided as to whether the person suffering from the infirmity could plead. We can submit that it all depends on the facts of the case. Gamble v. Siles.
Damages for breach.
After the court has found that there has been a breach of promise to marry, it can never force the defendant to marry the plaintiff (specific performance). The only thing they can do is to award damages to the plaintiff. Subject to the remoteness of damages and that which flow directly from the breach and was within the contemplation of the parties at the time of the promise. The gifts given in contemplation of marriage can be forfeited, including the engagement ring. Note the English law reform (miscellaneous provisions) Act which abolished breach of promise to marry and made provisions for recovery of gifts.
BREACH OF PROMISE TO MARRY UNDER CUSTOMARY MARRIAGES
A customary law marriage is by its nature polygamous. However a man married under statute cannot marry under customary law. Savage v. Macfoy Fonseca v. Passman
In Igbo land, Betrothal is merely a social relationship which creates a status of friendship. It is the first step.
The Section 3(1), Age of Marriage Law 1956 LEN provides that a girl can only be bethroted when she has come of age (16years). Consent of the bride’s parent is necessary irrespective of her age. The girl shows her consent by giving the husband the remaining palm wine in the glass to drink.
The marriage can be canceled for various reasons and dowry returned.
After the bride price has been paid, the formal handing over of the wife signifies the conclusion of the marriage.
Marriage cannot be by proxy- Ogunremi v. Ogunremi.