Breach of Promise


A man’s promise to marry another is treated as a legally binding contract.  When a breach is committed to such promise, an action will lie for damages.  An action for breach of a promise to marry is predicated upon the proposition that a defendant has breached an existing valid contract to marry.

A breach of a promise to marry arises from one party’s unwillingness to perform a promise.  The contractual relation in a marriage agreement is different from other agreements. In re Marriage of Mehren & Dargan, the California Supreme Court differentiated the contractual relation in commercial contracts from that in marital contracts.[i]  Generally, commercial contracts have a specific object and the parties enter into such contracts to achieve their objects.  Marital contracts are entered into with the expectation that the contract will never be revoked.  Moreover, marriage itself is a highly regulated institution of undisputed social value.  Parties intending to recover for breach of marriage must show that a valid contract existed for the purpose of marriage and parties had an intention to make a binding contract.

Like any other contract, the primary elements for the creation of a marriage contract are offer and acceptance.  When a promisor makes an offer, a promisee can give assent expressly or impliedly.  The essential element for the creation of a marriage contract is that both the parties must understand each other’s intention to enter into the marriage relation.  Parties incapable of entering into a contract cannot make an agreement to enter into a contract for marriage.  Incapacity to enter into a marriage is a valid defense to breach of a promise to marriage.  Additionally, a promise to marry a married person is invalid.  A promisor to such an agreement will be held liable for breach of a promise, in the event of termination of prior marriage by divorce, annulment, or death of the former spouse.  For a contract to be valid and enforceable, there must be a meeting of minds between the promiser and the promisee.  In a marriage contract, one party’s promise is adequate consideration for the other party’s promise.  The only condition is that the consideration must not be illegal.

Parties to a marriage contract can rescind the contract by mutual consent.  A contract can also be rescinded on the basis of vitiating elements like fraud, duress, incapacity, coercion, or misrepresentation.

In a marriage contract, a breach of promise results from the unwillingness to perform one’s promise to marry.  Mere postponement of the marriage will not amount to breach of promise.  However, arbitrary postponement without any valid reason will amount to a refusal to comply with the promise.

The defenses generally available in an action for breach of promise are:

  • invalidity of promise;
  • plaintiff’s refusal to marry the defendant;
  • Awareness subsequent to promise of the defendant’s physical incapacity or disease making it unsafe or improper to enter into marriage;
  • termination of the marriage contract; and
  • lack of capacity.

Moreover, if a plaintiff had an invalid divorce, a defendant cannot be held liable for breach of the marriage promise.

Following are the defenses that cannot be used in an action for breach of a promise:

  • he/she subsequently offered to marry the plaintiff;
  • the engagement of the plaintiff to another individual at the time of entering into a contract with the defendant;
  • the marriage of the plaintiff to another party subsequent to the defendant’s breach;
  • unappealing personality traits or offensive conduct;

Damages are recoverable if there is a breach of the promise to marry.  The nature and form of an action for breach of the promise to marry is contractual.  A plaintiff in a claim for damages can recover compensatory damages also.  Damages can be recovered for financial loss.  Compensatory damages are awarded for injury to health, feelings, and reputation.

In common law, an action may be brought to recover damages for a breach of a promise to marry.[ii] However, when a statute provides that a breach of contract to marry shall not constitute an injury or damages, then no action, suit or proceeding can be maintained.  Such a statute abolishes both the right of action for breach of promise and any right of action, whatever its form, based upon such breach.[iii]

[i] 118 Cal. App. 4th 1167 (Cal. App. 4th Dist. 2004)

[ii] Bibelhausen v. Bibelhausen, 159 Wis. 365 (Wis. 1915)

[iii] Thibault v. Lalumiere, 318 Mass. 72 (Mass. 1945)

Inside Breach of Promise