By Dr Analise Magri – Junior Associate
A universal concept which has been with us since time immemorial is that referred to as ‘betrothal’, or as commonly referred to in day to day parlance, ‘enagagement’. The traditional ceremony connoted by the term ‘betrothed’ has in most cases today been abolished, and replaced with the romantic act of ‘getting down on one knee’ proposal and consequent engagement. No matter the way the couple decides to celebrate this special moment, the end game is one and the same – that the future spouses promise one another become one through marriage.
The step to follow is often that of informing the world of this happy promise, often communicated through a classic Facebook or Instagram post captioned “she said yes”. As the congratulations comments to the couple start pouringin, very little does one come to ponder the legal consequences which may ensue should this promise to marry not materialise in a marriage.
Still a part and parcel of our law is the Promises of Marriage Law (Chapter 5 of the Laws of Malta) which was enacted into our legislation by means of a proclamation way back in 1834. Whilst recognising that (even though not as common) a couple may still enter into written promises of marriage, the legislator has made it crystal clear that in spite of such written promises, no court in Malta shall compel or order any person to perform or complete any promise of marriage made to another, or any contract or agreement entered into with another for the solemnization of marriage. Put simply, no court can force anyone to get married.
, It must be emphasised however, that being betrothed or engaged denotes a bilateral contract between the fiances. And therefore, just like any other contract, the promise to marry (the obligation in this form of contract) may not always be fulfilled. Aimed at safeguarding the interests of ‘injured’ fiance, the legislator has mantained an action for damages if the marriage does not ensure.
By way of an example, if a fiancé refuses to enter into marriage within a reasonable time after a request made by the other, or otherwise one fiancé decides to call off the wedding after discovering that the other was seeing someone else, the injured party shall be entitled to maintain an action for damages against the other for the recovery of damages. Such an action for damages has to be instituted within a two-year prescriptive period.
An action for the compensation of damages due to the non fulfillment of a promise to marry (whether such promise was made verbally or whether it was deduced to writing) requires that there was indeed an existing promise to marry between the parties, and consequentially that this ‘promise’ was broken down solely by the defendant without a just cause. Furthermore, the ex-fiancé instituting the case must prove that s/he suffered material damages as a consequence to this unfulfilled promise.
In order for an action of the sort to succeed, it is not necessary that the parties would have wrote down their intended promises to marry in the form of a contract, and neither is it a requisite that an engagement ring would have been given. What is essential however is the capacity of the parties to contract the ‘betrothal’ or the ‘engagement’; which capacity is identical to the capacity to contract marriage.
It is only in the form of damages awarded wherein consideration has to be given of the means through which the ‘promise to marry’ was made; whether written or verbal.
Maltese law does not always award moral damages, and this is a fact. A failure to fulfill the promise to marry can be considered as one of the few instances wherein the Maltese legislator has envisaged the award of moral damages. However, this is not so clear cut. When a fiancé decides to back track from the promise to marry, the injured party may only demand moral damages if the promise to marry had been deduced to a written agreement; and thus the Promises of Marriage Law (Chapter 5 of the Laws of Malta) would be rendered applicable.
It is apt that nowadays deducing a promise to marry to writing is rather considered to be the exception than the rule. However, this does not mean that a party whose marriage has been called off has no way to recuperate material damages. The absence of a written form does not render inadmissible an action for the material damages actually suffered as a consequence of the wrongful action of the guilty party, since the right to these specific damages, derives from a different law altogether – specifically article 1031 of the Civil Code (Chapter 16 of the Laws of Malta) which provides that everyone must answer for the damage that happens through his/her own fault in conjunction with article 1125 of the Civil Code for failure to execute a contracted obligation.
Therefore, irrespective of the manner in which the promise to marry was professed, one must be extra cautious when retracting from marriage as should the elements of the existence of the marriage, the unjust behaviour of the retracting fiancé, and the consequential sufferring of material damages concur, one might find himself defending a lawsuit for damages before the courts.