The Sunday Mail
Coddy Fungai Nyamundanda: Legal Matters
When a man proposes marriage to the love of his life and she accepts the proposal and they become engaged, they are said to have concluded an agreement to marry in the future. If that engagement is called off, the situation is that the aggrieved party wants to sue his or her former lover for breach of promise.
Although there is frustration and heartbreak that may be experienced at the demise of an engagement, the unfortunate reality of the matter is that it is not that easy to succeed in a monetary claim against somebody who is not intent on fulfilling his or her promises.
Our Zimbabwean common law has, over the years, recognised the principle that an aggrieved person has a claim for breach of promise. The action for breach of promise is now seldom taken though some aspiring people still issue summons only to withdraw them at a later stage for differing reasons.
Thus, there are few Zimbabwean decisions in such actions. As regards the determination of what constitutes a promise to marry and what evidence supports it, the case law is unfortunately unsatisfactory.
The action for breach of promise may be taken by either sex, although actions by men have historically been rare. I believe the idea is when the female is the injured party, there is generally more reason for a resort to the courts, than when the man is the sufferer.
A deserted female, whose prospects in life may be materially affected by the betrayal of the man, to whom she has pledged her vows, will always receive from a court the attention which her situation requires.
It is also for the public interest that conduct tending to condemn a virtuous woman to celibacy should meet with that punishment which may prevent it from becoming common. I am sure the reader will agree that they have been a victim, and may know someone who has been a victim or they have breached such promises for reasons only the heart will tell.
I also believe that people do not sue under such actions because of the obvious fear of adding salt to the wound, fear of victimisation either by relatives, friends and the media, think of H-Metro, lack of finances, the fact that it is viewed as giving an opportunity for claims of a “gold-digging” nature and that might also explain the reason why legal aid was never made available for such actions.
It must be noted that there can be no action for breach of promise unless an express agreement to marry has been made. There are no formal requirements regarding the contract. It needs not to be evidenced by writing and the law prescribes no particular form of words. A promise by one person to marry another is not binding unless and until that other also promises to marry the first person.
Mutual promises to marry may be implied from the conduct of the parties. A declaration of intention to marry another made to a third person will not constitute a promise unless communicated to the other person on the authority of the person making the declaration. While it is not necessary that the mutual promises should be simultaneous, both should be made within a reasonable time of one another.
Promises to marry made by minors are voidable at the option of the minor. A minor may sue on such a promise but may not be sued, even if he or she has ratified the promise after coming of age. The recent Zimbabwe Constitutional Court judgement abolishing marriages involving a minor solves this equation.
A promise by a married man or woman to marry another person is actionable where the complainant had no knowledge of the defendant’s married state.
Where, however, the other person is aware of the defendant’s position, a promise by the defendant to marry that person after the death of his or her spouse will be unenforceable on the grounds of public policy.
The Supreme Court of Zimbabwe once dealt with such a matter in the case of Sibanda and Another v Sibanda (2005) ZWSC 109 where it stated that an action for damages on the ground of breach of promise or fraud may lie against a person who has induced another by fraudulent misrepresentations to enter into an invalid marriage with him.
Thus, also a plaintiff who has been seduced may recover compensation for the loss of her virginity since the consequent impairment of her marriage prospects is clear. The question though in these modern times is to what extent does loss of virginity affect a woman’s prospects of getting married?
Nonetheless, a promise to marry must be fulfilled within the stipulated time, or, where no time has been stipulated, within a reasonable time. A conditional promise to marry may be sued upon when the condition has been fulfilled.
If, however, the defendant before then absolutely refuses to honour the contract, an action will lie immediately.
Similarly, an action will arise where the defendant marries another before the time for the fulfilment of the condition has passed or where no condition arises, if he or she does so before the time at which he or she has agreed to marry the plaintiff.
There are various factors which might defeat a claim of breach of promise to marry and what amounts to justification is a question of fact in each case.
A defendant is not bound by his promise where he establishes a false representation, or fraudulent concealment in material particulars, of the pecuniary circumstances or previous life of the plaintiff for example, non-disclosure that she once eloped or he was criminally charged with rape.
The bad character and reputation of the complainant will also excuse the defendant from performance of the contract, unless he or she was aware of the plaintiff’s character before making the promise.
The discovery that his fiancée had given birth previously is a major cause.
In South Africa, insanity, intoxication, force, intimidation, mistake, fraud and misrepresentation will all constitute good defences to a breach of promise action. Under the general heading of “any other good reason” the discovery of impotence, sterility, alcoholism or serious criminality will entitle a person to terminate an engagement.
Previous confinement in a mental hospital does not necessarily render the agreement to marry invalid, but supervening insanity will afford a solid defence.
However, some people are so particular that they would not want to be married to someone who has previously been confined at Ingutsheni Hospital, etc.
The fact that the defendant honestly and reasonably believed the plaintiff to be unfit to marry is no defence if the complainant was, in fact, fit.
The damages in an action for breach of promise are not measured by any fixed standard and are almost entirely a matter in the discretion of the judge or magistrate. Exemplary damages may be awarded, and damages may be aggravated or mitigated according to the behaviour of the parties.
The stability of marriages is so important to society that the law should not allow rights of action, the threat of which may push people into marriages which they would not otherwise undertake.
In any event, what would one gain even if they succeed in the claim? Would it make you feel better later on to receive a congratulatory card or text message from the ex or his or her relatives after your win?
Would that not even cause you anguish and emotional pain? Well, some people will tell you that they never suffer heartbreaks simply because, you see, some people do not have a heart, if you know what I mean, not in the literal sense, but that they are not capable of loving anyone even themselves!
This, though, does not take away the energy from the arguments in favour of retaining the claim as they argue that the risk of “gold-digging” actions is more theoretical than real. The rule that the plaintiff’s evidence must be corroborated should normally protect the defendant sufficiently.
Also, the fear of blackmail is one that affects many areas of the law, but the solution is not to abolish the right of action. Potential defendants must use their common sense and avoid placing themselves in awkward situations where they are not really serious or have not finally made up their minds.
Whilst the stigma of a broken engagement may have lessened in recent years, the fact remains that the experience of being jilted by a person who has perhaps behaved with deceit or callousness is very often a painful and humiliating one.
The reader might be inclined to the view that in rural communities a jilted woman may suffer more humiliation and “loss of chances” than a jilted woman in an urban set-up.
The jilted party may well have suffered financial loss as a result of the engagement or may have foregone other opportunities of marriage.
Whilst in some cases it is not right to equate responsibility for the termination of marriage with “fault”, there are some cases where engagements are broken for silly, unfounded or dishonourable reasons such as “I just woke up not loving you”, imagine that coming from your fiancé of eight years. Thus, a remedy in damages should be available in such cases.
However, others still call for the abolishment of the action for breach of promise on the basis that the possibility of “gold-digging” and blackmail actions has been prevented to in many countries, the risk that a woman whose engagement has been broken will, thereafter, be shunned by potential marriage partners may well have lessened greatly in recent years, to equate responsibility for the termination of the engagement with “fault” may be mistaken policy in many cases, the possibility of a legal action may have the effect of encouraging persons with less than a full matrimonial commitment to marry. This might result in the marriage being an unsuccessful one.
The world has moved on and moral standards are forever changing. Divorce, which in earlier days was only available in the event of adultery or desertion, is now available in the event of an irretrievable breakdown of the marriage and other just causes. So there is no reason why a just cause for ending an engagement should not likewise include the lack of desire to marry the particular person, irrespective of the “guilt” of the latter.
Unwillingness to marry is clear evidence of the irretrievable breakdown of the engagement. It would appear illogical to attach more serious consequences to an engagement than to a marriage.
CoddyFungai Nyamundanda is a legal practitioner who writes in his personal capacity. Feedback: [email protected]
