FAMILY LAW [betrothal notes]

Information about FAMILY LAW [betrothal notes]

Published on June 8, 2020

Author: AmaliaSulaiman2

Source: slideshare.net

Content

1. AMALIA SULAIMAN UKM LAW SCHOOL 2020 WEEK 3 | BETROTHAL 1. Definition: • The act of betrothing or the fact of being betrothed. • A mutual promise to marry. • A contract between two people. 2. Requirements: a. Offer – “Will you marry me?” [Promisor v Promisee] b. Acceptance- “I do!” [Promisee to Promisor] c. Consideration- [Promisee to Promisor] • There must be a valuable consideration. • The agreement/affirmation to marry the other party is sufficient in return. • The consideration may be in the form of an act on the part of the promisee. Harvey v Johnston (1948) 6 KB 295 Plaintiff, living in Canada went to Ireland to marry the defendant but the defendant breached his promise. Plaintiff sued the defendant. Defendant says there is not enough response from plaintiff. The court ruled in retaliation when plaintiff agreed to go to Ireland for his request to marry Defendant. d. Capacity [Single and Age of Majority] Both parties must be single. If either of the party is married the agreement is void. Spiers v Hunt [1908] 1 KB 720 Defendant, who was to the knowledge of plaintiff a married man, promised to marry plaintiff on the death of his wife. He did so with the intention, known to plaintiff, of inducing her to commit adultery with him, and she did so after the promise and before the death of defendant’s wife. It was held that such a promise was contrary to public policy, and could not be enforced. Wilson v Carnley [1908] 1 KB 729, A promise of marriage made by a man, who to the knowledge of the promisee was, at the time of the making of the promise, married, is void as being against public policy, and therefore cannot be enforced by action after the death of the promisor's wife.

2. AMALIA SULAIMAN UKM LAW SCHOOL 2020 e. Exception of the status ‘Single’ I. Plaintiff did not know that the defendant was married when the agreement was made. Shaw v. Shaw [1954] 2 QB 419 Facts: In 1937, S., a married man, representing himself as being a widower, went through a form of marriage with the plaintiff. In 1950 his legal wife died, and in 1952 he himself died intestate. After S. died the plaintiff became aware for the first time that she had not been legally married to him and she brought an action against the administrators, a son and a daughter of the deceased, claiming damages for breach of promise of marriage by the deceased: Held: that there was a continuing breach of the implied warranty given with the promise of marriage that S. was in a position to marry. There was also a breach of the promise to marry, for that promise could have been implemented in 1950 when the legal wife died. The claim was not excluded on grounds of public policy, because the plaintiff did not know that S. was already married. Thus, P was allowed to sue. ii)) The agreement is made within the decree period. Fender v St.John-Mildmay A promise can be made when the woman has obtained decree nisi (tempoh iddah). It doesn’t affect the reconciliation process and public policy. iii) The man is allowed to practise polygamy. Nafisah v. Abd. Majid [1969] 2 MLJ 174 When the defendant’s personal law allows him to marry more than one thus the promise is valid. Thus, the plaintiff is entitled to sue for breach of promise. Maria Tunku Sabri v Datuk Wan Johani [2012] 7 MLJ 419 Facts:

3. AMALIA SULAIMAN UKM LAW SCHOOL 2020 The plaintiff's cause of action against the defendant was based on a settlement agreement ('SA') entered into between the parties, due to the breach of promise to marry by the defendant to the plaintiff. The defendant however, contended that the SA or its execution was prohibited by law and was void due to the fact that the plaintiff was a married Muslim woman at the time of entering into the promise to marry, which the SA was based upon. Held: Held, allowing the defendant’s application with costs. A married woman cannot be married to another unless she is declared single. iv) Apabila agama salah satu/kedua pihak tidak menghalang mereka berkahwin. Mary Joseph Ariokasamy v Sundram [1938] Defendant (Hindu) promised to marry Plaintiff (Christian). P was informed that D’s wife had died. D breached promise to marry. The court held that there is no religious impediment against a Hindu man marrying a Christian girl. Thus, the promise was valid and enforceable. Age There are no legal provisions for the age of engagement for non-Muslims in Malaysia. However, we may refer to the Contract Act which provides for the basic contractual requirements of s.10, s.24 and s.11 (parties to be 18 years of age). Is this a minor who cannot contract an engagement? Refer to the case of Rajeswari v Balakrishnan Pl (minors) enter into betrothal contract with Def. Def breached promise and Plaintiff sues. The High Court ruled that a minor can enter into an engagement contract with the Indian case (Fernandes v Gonsalves and Khimji Kuverji l Karama Karma). Mr B and Mrs T Does not have to obtain parents’ consent to enter into a promise to marry.

4. AMALIA SULAIMAN UKM LAW SCHOOL 2020 3. Breach of promise: If either party refuses to fulfill the promise of marriage, the other party has the right to take legal action for damages. Failure may occur in the following circumstances: a) If no date of marriage is specified- the Court shall declare that the marriage shall be held within a reasonable time, eg: Harrison v Cage (1698) b) Anticipatory Breach ex: Frost v Knight When the promisor terminates the promise to marry in advance, the promisee has 2 options: (i) whether to wait until the time when the agreement is due and then take action or (ii) promisee to continue to act without delay 4. Claims against breach of promise Can a claim for breach of promise be made in Malaysia even though the law in England abolished it in 1970? Refer to the case of Doris Rodrigues v Balakrishnan It was decided that the English Reform Law, which came into force in 1970, would not be applicable in Malaysia because it complied with s.5 of the Civil Laws Act 1956, the laws of England applicable in West Malaysia were as follows on 7 April 1956. Also, English law only applies when there are lacunae whereas we already have the Contract Act.

5. AMALIA SULAIMAN UKM LAW SCHOOL 2020 5. Defense against claims • Misrepresentation of fact The defendant may use the grounds that he entered into a contract on the basis of misrepresentation of fact. Ex: Wharton v Lewis where Pl is sued for Defendant's refusal to marry. Defendant's reason was that he had entered into the contract as a result of misrepresentation of the actual circumstances of the pl's family and the pl's past life. However, it was decided that Defendant was not given the wrong impression before entering into the agreement and pl deserved damages. • Engagement Non-contract Uberrimae Fidei i.e you do not have to declare everything to the other party The betrothed party has no obligation to inform the other party of their engagement status. Ex; If A is engaged to B and then promises to marry C, then A has no obligation to inform C of his engagement with B. Case: Beachey v Brown (1860) EB&E 796 Question: What if you discover that the woman is of unchaste conduct that goes to the very root of a contract of marriage? See Cockburn CJ: Beachey v Brown “… Where it turns out that a woman is of unchaste conduct, which goes to the very root of the contract of marriage, there, from the excess and necessity of the case, the man is released from his contract.” • Factors of plaintiff's inability If Pl is physically or mentally / morally incapable of causing her to be unwell then this could be a reason for Def. The conditions are: This is only known after the engagement contract was made or the disease subsequently arose. (PL MUST BE REALLY SICK / UNFIT FOR MARRIAGE). However, if Defendant honestly believes that Pl is unhealthy while in fact Pl is healthy, then Def cannot use this health ground to refuse to marry. See case: Jefferson v Paskell After getting engaged, Pl told her doctor that she has tuberculosis and that she was unwell to get married. After treatment, pl is healthy but def still refuses to get married. Actually, pl does not have tuberculosis. Plaintiff sued Defendant on the ground that he honestly believes that pl is unhealthy to marry. The court awarded Pl a damages for Def's failure to prove the disease.

6. AMALIA SULAIMAN UKM LAW SCHOOL 2020 • Defendant's own mental and physical disabilities cannot be excused See case: Hall v Wright Def refuses to marry Pl, his fiancée. Def's reason is that he is sick and that consummating of marriage can endanger his life. However, the Judge held that if they were married, the couple could not have children; Pl can still enjoy other things in marriage such as his wife's status. Def, therefore, was ordered to pay damages. 6. Remedy • Type of Damages i) General Damage ii) Special Damage i) General damages refer to abstract matters such as hurt feelings and degraded dignity. Berry v Da Costa After Def promised to marry Pl., He left his mother's house and lived with Def in some places. Def then married another woman. Pl sued def because of breach of promise. Pl was awarded damages and Def pleaded. It was decided that in determining damages, it was not limited to financial damages but the court could consider the hurt and dignity of a woman who had been mistreated. The prospect of a lesser marriage can also be taken into account. • See also Dennis v Sennayah In this case, general damages are given for the shame and torture suffered by pl. See also: RS Thanalachimi v Sundararaju Mattaya [2011] 7 CLJ 197: Nagamah a / p Subramanian v Ponnusamy a / l Rajoo [2008] 6 MLJ 152: Mr B v Ms T –Case No: KCH12B-26 / 11-2011 • In awarding damages, the court not only compensated Pl for the loss of time but also punished Def in an exemplary manner. However, the court also considered Def's financial position, refer to Rajeswari Balakrishnan

7. AMALIA SULAIMAN UKM LAW SCHOOL 2020 ii) Special Damage refers to what can be calculated with money e.g. Wedding expenses Refer to the case of Dennis v Sennayah where the Court awarded $ 620.10 in damages for food and clothing expenses. See also: JULIA CHILDREN (app) v AMBROSE JUDE CHILDREN (resp) 12B-3-2010: Special damages claim must be documentary proof • Any conditional gifts on a wedding should be returned if they fail to make an appointment • If any gift is given on a conditional basis (ie marriage to take place) then it must be returned by the non-party. • Refer to the case of Cohen v Sellar (1926) 1 KB 536 • If the girl refuses then return the engagement ring. • If the man is in denial, he cannot claim the ring back to his fiancée. • If the engagement is mutually exclusive and there is no agreement to the contrary, then return the ring @ what gift to both parties. • If the marriage does not take place because of the giver's death, return any gifts. • If the marriage has taken place, the gift will be the sole property of the recipient.

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