Lecture One:

Engagement, Marriage,
And Intimate Unions
 ENGAGEMENT/PROMISE TO MARRY

• An agreement between two people that they will be

married.
• An engagement may be treated as a contract and is
therefore governed by the requirements of contract law.
Consequently, all rules for formation, validity and breach
will generally apply.
 REQUIREMENTS FOR A VALID ENGAGEMENT
CONTRACT:

1. Offer

2. Acceptance

3. Consideration : Harvey v Johnston

4. Capacity to Marry: Parties must be single

and all the other prerequisites for a
valid marriage (discussed below) must
be present. See: Spiers v Hunt
 Breach of Engagement Contract

Anticipatory Breach:
Actual Breach – • Date not fixed – failure to
marry within a reasonable
Date fixed but non- time
performance by one • Demand by other party – no
party. valid reason for delay or
refusal
 The Law In Action

Harrison v Cage [1698] Frost v Knight [1872]

• P(male) and R(female) • D promised to marry P on
promised to marry each her dad’s death. Before
other. P requested that they father died, D reneged
proceed but R refused and and P sued.
married D instead.
• Held: no need to wait for
• Held – Breach of promise to father’s death. Breach
marry. was anticipatory
 Misrepresentation of Fact

DEFENCES Non-disclosure (= uberrimae fidei)

See: Breachey v Brown

Moral, physical or mental infirmity rendering

person unfit for marriage
See: Jefferson v Paskell vs Hall v Wright
 WHAT REMEDIES ARE AVAILABLE FOR
BREACH OF CONTRACT?? SHOULD THEY
ALL APPLY?

General Damages
Consequences
of Breach
Special Damages e.g. medical
expenses, wedding preparation

Specific Performance? Why or Why

not?
 And the ring??

Under The Law Reform (Miscellaneous

Provisions) Act 1970 UK:

“The gift of an engagement ring

shall be presumed to be an
absolute gift; this presumption may
be rebutted by proving that the
ring was given on the condition,
express or implied, that it should be
returned if the marriage did not
take place for any reason.”
Why do
people get
married?
Any Benefits?
 WHAT IS MARRIAGE?

“The voluntary union for life of

one man and one woman, to
the exclusion of all others”
per Lord Penzance in Hyde v Hyde and Woodmansee
Consider the popular/traditional marriage vows:

- ‘Til death do us part

- For richer for poorer, in sickness and in health
- Forsaking all others, keep myself only to thee

• These are aligned with the underpinnings of longevity,

unconditional commitment, and exclusivity
 Status or Contract?

• In English law, and by extension, law in CC jurisdictions,

marriage is best understood as a mixture of a contract and a
status. Baroness Hale has explained:
“Marriage is, of course, a contract, in the sense that each
party must agree to enter into it and once entered both are
bound by its legal consequences. But it is also a status. This
means two things. First, the parties are not entirely free to
determine all its legal consequences for themselves. They
contract into the package which the law of the land lays
down. Secondly, their marriage also has legal consequences
for other people and for the state.”
…but not an ordinary contract

• Parties to a marriage must have capacity to enter the

marriage contract in accordance with the law, that is,
there are limitations on ‘freedom of/to contract’.
• The contract cannot simply be varied or discharged by
mutual agreement but requires legal sanction in the form
of a divorce
• Grounds relating to whether a marriage contract is void or
voidable varies from those of regular contracts
 LEGAL REQUIREMENTS FOR A
VALID MARRIAGE
1. Compliance with formalities prescribed by national law
2. Parties must be single
3. Parties must attain a minimum age
4. Parties must be one male and one female
5. Parties must be outside the prohibited degrees of
consanguinity and affinity
1. Compliance with
Legal Formalities

Marriage takes
place under the
authority of a
Certificate or
License.

Certificates Licenses
Certificate Certificate
of Public of Minister
The Registrar’s Certificate –
Officer Most jurisdictions
of Religion
The Magistrate’s Marriage Officer/Minister
Certificate – Barbados of Religion’s Certificate
The Superintendent
Registrar’s Certificate -
Guyana
E.g. Marriage Act Trinidad
Prior Notice must Sections 16 and 17
E.g. Marriage Act Trinidad – - Particulars must be entered
Sections 12 – 15 be given! into Marriage Banns Book
- Wedding must be within 6 - Banns must be published on
months after notice principal church door for 2
- Marriage Notice Book with weeks & announced in Service
particulars is placed in - Copies of banns to be sent to
conspicuous place for 7 days Registrar General
-Certificate issued after 7 days - Certificate issued after
and before 6 months if no publication complete and
lawful impediment found before 6 months expire
Example of Wedding Banns
 Licences

Licences are used to waive the notice requirement

E.g. See Section 19 Marriage Act T&T:

Application made before Registrar General making solemn declaration

that there is no lawful impediment
Non-residents to be in T&T for at least 3 days prior to marriage

Special licence may be granted under Section 20 of Act

See: Section 28 of Marriage Act T&T
• Time : 6am to 9pm : (by Amendment Act 8 of
2017)
• In the presence of two or more credible
witnesses besides the marriage officer

See: Sections 34 – 35 of Marriage Act T&T

Formalities
• Marriage Officer to register Marriage in
“Marriage Register Book”
Continued…
• Particulars to be entered on duplicate original
register and signed by witnesses and marriage
officer
• Duplicate to be transmitted to Registrar General
2. Parties must be single
• Hyde v Hyde – Mormon marriage not
recognised so no adultery.

• Henry v Henry [1959] 1 WIR 149 – where a

wife under a polygamous marriage under
Islamic law was not entitled to
maintenance as the marriage was not
recognised

• Raffique v Raffique – Muslim marriages

later recognised in T&T.
NB: Not only is marriage invalid if not
monogamous but bigamy is an offence
under Section 55 of Offences Against the
Person Act which carries a penalty of
imprisonment for 4 years!
Free, Single and Disengaged?

• The ‘single’ requirement is protected even in the promise to marry:

- Spiers v Hunt [1908] 1KB 720 – Action for breach of promise to marry failed as the
promise was made by an married man to induce a woman to commit adultery with
him. Although there was a promise to marry upon death of the man’s wife, this
promise was contrary to public policy and hence the contract was void.

- Fender v St. John – Mildmay [1937] 3 ALL ER 402 – where promise is made at
decree nisi stage, damages may be awarded for breach. Note – damages and
not specific performance.

- Polygamous marriages are recognised in The Bahamas where the marriage took
place in a country where it is allowed and the parties were not domiciled in the
Bahamas at the time of solemnisation of the marriage.
 3. Parties must
attain the
minimum age
• 16 years old is the minimum age in most CC
jurisdictions

• Prior to 2017 there was no minimum age for T&T

nationals for Christian and Civil Marriages. For Hindu,
Muslim and Orissa marriages the ages varied between
males and females as 18/14; 16/12; 18/16 respectively
• This was problematic and inconsistent with children’s
rights, women’s rights and even local laws e.g.
Children’s Act & age of consent.
• By 2017 Amendment to Marriage Act (T&T), Minimum
age in T&T is 18 years old across the board.
• If persons are under the minimum age, then consent is
required for the marriage from persons set out in order of
priority:
- Both parents if living together
- Parent with custody
- Guardian
Pugh v Pugh [1951] 2ALL ER 680: Wife (Hungarian) was 15
when married. Marriage was nullified as man was British and
the Age of Majority Act applied to him, notwithstanding the
‘marriage took place in Austria.
4. Parties must be Male: Female

• In almost all CC jurisdictions, same sex unions are not

recognised as marriages. In St. Kitts & Nevis, although same sex
unions are not allowed, foreign same sex unions (in
accordance with the relevant foreign law) are recognised in a
limited way.
• Corbett v Corbett [1970] 2 ALL ER 33: A married B (whom A
knew was born a male but lived as a woman). Upon A’s
petition, the court held that the marriage was void as sex is
fixed at birth and cannot be changed by natural
development or surgical introduction of organ changes, etc
• Consider the potential impacts of CV2017-00720: Jason
Jones v AG of Trinidad and Tobago

• Consider the human rights argument – based on Section 4

of Constitution of T&T – right to respect for private and
family life
 5. Outside prohibited
degrees of affinity
and consanguinity
Consanguinity – Blood Relations
- Moral, Religious and Genetic Rationales
(Disorders/Security of Children/’Yuck Factor’)
- The crime of incest

• In all CC jurisdiction, blood relations cannot be

legally married, that is,
- Parents to Children (all such linear relations)
- Siblings to Siblings (including half-siblings)
- Uncles to nieces
- Aunts to nephews
- First cousins
Affinity – In Laws

• Barbados has no restrictions on marriage due to affinity except for a prohibition in

relation to marriage between parents and adopted children
• Guyana, Jamaica, SLU, St. Kitts – marriage to sibling of deceased spouse allowed
but not marriage to daughter-in-law/son-in-law or step children

• UK Marriage Enabling Act 1960, Section 1:

No marriage hereafter contracted (whether in or out of Great Britain) between a
man and a woman who is the sister, aunt or niece of a former wife of his (whether
living or not), or was formerly the wife of his brother, uncle or nephew (whether
living or not), shall by reason of that relationship be void or voidable under any
enactment or rule of law applying in Great Britain as a marriage between persons
within the prohibited degrees of affinity

• Trinidad – No rule against marriage to in-laws; in line with 1960 UK position

 Void and Voidable Marriages

Void • Void Ab Initio

• No decree necessary
Marriages: • Anyone can bring proceedings

Voidable
• Valid until annulled
• Decree must be issued
Marriages: • Only parties to marriage can bring
proceedings
When is a
marriage void?
• See:
• Da Silva v Da Silva – (time)
• Gibson v Gibson – (no marriage certificate)
• Hughes v Hughes – Officiating Officer not licensed
When is a marriage voidable?

Non-consummation (Incapacity)
- Physical incapacity: “it means in law that one of the parties is at the time and
continues to be incapable of effecting or permitting the consummation of the marriage for
example by reason of some structural defect of the organs of generation, which makes
sexual intercourse impracticable.” – Treasure v Treasure JM 1978 SC17
See: D v A (1845) – intercourse must be complete, not partial or imperfect; capable of
reproduction/pleasure/prevention of adultery; Baxter v Baxter (1947)- sex with
contraceptives = sex

- Psychological incapacity:
See: Harthan v Harthan – H could not consummate over 22 years. Through psychological help
was able to have an erection 20 years into marriage but still unsure. Ct allowed petition.
NB: Applicable Time = As at date of hearing – see: S v S (1956)
When is a marriage voidable?

Non-consummation (Wilful Refusal)

- Ramnath v Ramnath (1983): Wife’s refusal to accompany
Husband to parents’ house to live was not refusal to
consummate marriage
Contrast with:

- Kaur v Singh : H made consummation impossible by

refusing to arrange religious ceremony that was a
prerequisite to Sikhs consummating marriage.
When is marriage voidable?

Lack of consent
• Duress:
- H v H (1953)- where H married a Frenchman solely to escape
danger to life, liberty and virtue if she remained in Hungary
- Singh v Singh- Sikhs arranged marriage. Wife claimed she
expected H to be handsome and educated and could not
consummate as she found him repugnant. Petition failed and
Ct noted H could cross appeal for wilful refusal to
consummate.
• Mistake
- Valier v Valier (1925): Italian man was taken to registrar’s office
where a civil marriage ceremony was performed. He did not
speak English and so did not know what was taking place.
Marriage never consummated. Decree of nullity granted on
the ground of mistake.
• Fraud
- Perkins v Perkins (1984): Woman feigned pregnancy to induce
man to marry her with the aim of gaining citizenship. She
thereafter confessed and told him she wanted nothing to do
with him. His petition succeeded on the basis of fraud.
• Mental Incapacity
- Estate of Park (1953): test is that the person must be capable of
appreciating the responsibilities attendant to marriage and not
have any morbid delusions on the subject.
Section 13 (2)
Matrimonial
Proceedings &
Property Act
(T&T)
 Bars to decree of nullity
Section 14 of MPPA (T&T)
• Time: failure to institute nullity proceedings within the prescribed statutory period (3 yrs T&T)
• Knowledge: e.g. knowledge by the petitioner that at the time of the marriage he/she knew that the
respondent had a venereal disease or was pregnant etc
• Approbation: conduct on the part of the petitioner that indicates a recognition of the validity of
marriage that makes it inequitable and contrary to public policy to apply for a nullity: D v D (Nullity)
[1979] Fam70.
H and W were married, but the marriage was never consummated because W had a physical
impediment to consummation and refused to undergo surgery to correct it. Ten years later, after the
couple had adopted two children, H left to live with another woman and petitioned for nullity on the
grounds of inability or refusal to consummate. W withdrew her objections before trial, but the judge
considered whether the petition was barred by H’s acceptance of the situation. Allowing the petition, he
said approbation alone was no longer enough: the statutory bar required both the petitioner’s conduct
and injustice to the respondent. In the instant case, there the respondent made no objection and so
clearly would not suffer injustice if the decree were granted.
Other Legally Recognised Unions

• Visiting Relationship
Non-cohabitational by necessity

• Cohabitational
-“cohabitational relationship” means the relationship
between cohabitants, who not being married to each
other are living or have lived together as husband and wife
on a bona fide domestic basis; - Cohabitational
Relationships Act Chap 45:55 (T&T)
 Why recognise other unions?

• Societal Acceptance
• Historical reality
• Protection of vulnerable people
• Fairness