Breach Of Promise To Marry: Marriage As A Contract In Ghanaian Law

Introduction

Marriage, while often regarded as a social and cultural institution, also possesses significant legal dimensions. One such dimension arises where a party reneges on a promise to marry. The question then arises whether the law recognises a cause of action for breach of promise to marry and, if so, what remedies are available to the aggrieved party. In Ghana, the issue must be examined through the lens of customary law, common law principles, and relevant statutory provisions.

This article examines the legal position on breach of promise to marry in Ghana, drawing from customary law authorities, case law, and common law doctrines.

Breach of Promise Under Customary Law

Customary marriage in Ghana is traditionally viewed as a union between two families rather than merely between two individuals. However, it is also recognised as a contractual relationship between the prospective spouses. The question therefore arises whether failure to fulfil a promise to marry creates legal liability.

Early native court records show that claims were sometimes made, but success depended on clear proof that a promise to marry had actually been made.

An early illustration of the recognition of such claims appears in Kwame Addo v Adjoa Duko (1915), decided before the Court of the Omanhene of Akim Abuakwa. The parties had orally agreed to marry, and the plaintiff presented the defendant with a necklace in anticipation of the marriage. When the defendant refused to proceed with the marriage, the court awarded damages and ordered the return of the necklace.

This case demonstrates that where there is sufficient evidence of a promise and reliance on that promise, customary courts have been willing to grant relief.

Judicial Treatment in Ghanaian Courts

Modern Ghanaian courts have addressed breach of promise to marry in several notable cases.

In Afrifa v Class-Peter, the defendant promised to marry the plaintiff and gave gifts to her family including money and drinks. He also gave the plaintiff a ring and a Bible and subsequently cohabited with her. In anticipation of the marriage, the plaintiff resigned from her employment as a teacher. The defendant repeatedly postponed the wedding and eventually engaged in relationships with other women.

The plaintiff sued for damages for breach of promise to marry, and the court ruled in her favour. On appeal, the decision was affirmed. The Court of Appeal held that the evidence, including the gifts, cohabitation, and postponement of the wedding, clearly demonstrated an intention to marry. The defendant’s conduct therefore constituted a breach of that promise.

Another instructive decision is Djarbeng v Tagoe [1989-90] 1 GLR 155–161. The plaintiff became pregnant during a relationship with the defendant and alleged that he had promised to marry her before leaving Ghana to pursue studies abroad. Although letters suggested that the defendant intended to marry her in the future, the court held that there was insufficient evidence of a binding promise. In particular, the court emphasised the absence of family approval, which is central to customary marriage arrangements. Accordingly, the claim failed.

These cases illustrate that the existence of a legally enforceable promise depends heavily on the evidence. Mere intention or expectation of marriage is insufficient; there must be clear proof of a promise recognised under the applicable form of marriage.

Breach of Promise Under Common Law

Under common law, a contract to marry is defined as an agreement between two parties who mutually promise to marry each other. Each promise serves as consideration for the other.

Importantly, such a contract need not be in writing. Courts may infer the existence of a promise from the conduct of the parties. Actions such as giving an engagement ring, fixing a wedding date, or publicly representing themselves as engaged may support the inference that a contract to marry exists.

Void Contracts

Certain agreements to marry are void and unenforceable. For example, where one party is already married and the other party knows this fact, the agreement is contrary to public policy and cannot support an action for damages.

Forms of Breach

A breach of a contract to marry may occur in two main ways.

Non-Performance

Non-performance arises where the time for marriage has arrived and one party refuses to fulfil the promise. In such cases, the claimant must show that a request for marriage was made and that the other party refused.

Where the promise was conditional, for example, that marriage would occur after the completion of studies, no breach occurs until the condition has been satisfied.

Anticipatory Breach

An anticipatory breach occurs where one party repudiates the contract before the agreed time for marriage.

A classic illustration is found in Frost v Knight, where the defendant promised to marry the plaintiff after his father’s death but later repudiated the promise during his father’s lifetime. The court held that the plaintiff could sue immediately without waiting for the father’s death.

Similarly, if a party marries another person, this constitutes an anticipatory breach since the promisor has made performance impossible.

Remedies

The primary remedy for breach of promise to marry is an action for damages. Courts will not grant specific performance, as the law does not compel individuals to marry against their will.

Damages may include compensation for emotional distress, reputational harm, and financial losses suffered in reliance on the promise.

Defences to Actions for Breach

Several defences may be raised in an action for breach of promise to marry.

• Fraud or Misrepresentation

If the promise was induced by fraud or material misrepresentation, the defendant may rely on this as a defence. For example, concealment of important facts about one’s background or circumstances may invalidate the promise.

• Bad Character

Historically, proof that a woman was unchaste could constitute a defence to an action for breach of promise. Likewise, a party may be justified in breaking off an engagement if the other party is discovered to have a seriously disreputable character.

• Mental or Bodily Infirmity

Supervening insanity or a serious physical condition that makes marriage impossible may also constitute a valid defence.

• Mutual Release

Where both parties mutually agree to terminate the engagement, no action for breach will lie.

Recent Judicial Developments

Recent Ghanaian decisions demonstrate a willingness by courts to recognise breach of promise claims where the evidence establishes reliance and detriment.

In Vincent Kontoh v Ernestina Torgbor (2026), the parties had cohabited for over eleven years, during which the plaintiff gave the defendant a ring and publicly acknowledged her as a future spouse. The defendant also supervised the construction of property funded by the plaintiff and relocated from her previous home in reliance on the relationship.

When the relationship ended, the plaintiff sought to eject the defendant from the property. The defendant counterclaimed for breach of promise to marry. The court found that a binding promise existed based on the parties’ conduct and the defendant’s detrimental reliance. Applying principles of constructive trust and equity, the court awarded damages and recognised the defendant’s beneficial interest in the property.

This case illustrates the increasing readiness of Ghanaian courts to examine the broader context of relationships, including financial contributions and reliance, when determining whether a promise to marry has legal consequences.

Conclusion

The law relating to breach of promise to marry in Ghana reflects the interaction of customary law, common law principles, and statutory provisions. While early customary law writers suggested that such promises were generally unenforceable, judicial decisions demonstrate that courts will recognise liability where clear evidence of a promise and reliance exists.

Although courts cannot compel marriage, they may award damages or other equitable remedies where one party has suffered loss as a result of the other’s breach. As social relationships evolve and cohabitation becomes more common, the law continues to adapt to ensure fairness in cases where promises of marriage create legitimate expectations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.