Sue Your Ex? The Forgotten Ghanaian Law That Says You Can

In an era where relationships dissolve with the tap of a screen and broken hearts are dismissed as mere emotional casualties, Ghanaian law quietly preserves an ancient remedy that might startle modern sensibilities: the action for breach of promise to marry.

England and many American states scrapped this cause of action years ago, labelling it old-fashioned, a tool for gold-diggers, an affront to gender equality and unfit for modern relationships. Yet in Ghana, it remains quietly preserved within our received law, waiting to be invoked when serious commitments are broken.

What Is Breach of Promise to Marry?

At its core, a breach of promise to marry occurs when two people agree to marry and one party subsequently withdraws without lawful excuse. Marriage is viewed as a contract, and the foundation of that contract is the exchange of promises. This agreement can be express (a direct proposal and acceptance) or implied from the parties’ conduct towards each other.

Where a serious promise is broken, the aggrieved party can sue. The only remedy is damages.

Key Elements You Must Prove

To succeed in court, you must establish:

1. The Promise
There must be clear evidence of a mutual exchange of promise to marry. This can be:

• A verbal promise.
• A conditional promise (which only becomes actionable once the condition is fulfilled).
• A general promise, where the law will imply an intention to marry within a reasonable time.

How do courts identify a “serious” promise?
As seen in Mintah v Ampenyin, courts distinguish between a serious commitment and “a mere statement causally thrown about.” The conduct of the parties, gifts given (like a ring and Bible indicating a Christian marriage), and family involvement are all critical evidence.

2. The Breach
A breach occurs when a person refuses to perform the promise. This can be:

• By Conduct: Marrying someone else (as in Aning v Kingful).
• By Express Refusal: Directly stating they will not go through with it.
• Anticipatory Breach: Repudiating the promise before the wedding date (e.g., Frost v. Knight, where a man promised to marry a woman after his father’s death but called it off while the father was still alive).
• Non-Performance: Simply failing to marry when the agreed-upon time arrives.

Once a breach is established, damage is presumed. You don’t have to prove you suffered a loss; the law assumes it.

What Defences Can Your Ex Raise?

The defences are limited, but include:

1. Plaintiff’s Unchastity: If the plaintiff concealed their lack of chastity at the time the promise was made, it’s a complete defence. If the defendant knew about it, it only reduces the damages.
2. Serious Illness of the Defendant: Only if the illness is likely to cause death shortly or is dangerously contagious.
3. A Valid Release: If both parties agreed to cancel the promise, often in exchange for a payment.
4. Other Recognised Defences :

• Fraudulent misrepresentation by the plaintiff.
• Insanity rendering a party incapable of marriage.
• Discovery of the plaintiff’s extreme bad character (e.g., being an abuser).
• Infidelity by the plaintiff after the promise was made.
• Mutual agreement to withdraw.

Important: The disapproval of family, falling out of love, or a claim the marriage would have been unhappy are NOT valid defences.

What Damages Can the Court Award?

Damages are “at large,” meaning the court has significant discretion. They fall into three categories:

1. Compensatory Damages: To put you in the position you would have been in had the marriage occurred. This can cover:

• Mental distress and injured feelings.
• Loss of reputation and social disgrace.
• Loss of economic or social advantage the marriage would have brought.
• Expenses for wedding preparations.
• Pecuniary loss (e.g., quitting a job in anticipation of moving).
• Loss of other marriage opportunities (especially after a long engagement).
• Injury to health caused by the breach.

2. Aggravated Damages: Awarded for the defendant’s improper conduct, which worsens the injury. Examples:

• Seduction under promise of marriage.
• Falsely and maliciously attacking the plaintiff’s character during the trial (e.g., making unfounded allegations of unchastity).

3. Punitive (Exemplary) Damages: Rare, and reserved for cases where the defendant is a “thorough rascal.”

Awarded for:
Fraud: e.g., promising marriage only to seduce the plaintiff or gain access to her money.
Malice: e.g., proposing out of vanity to show off, or breaking off the engagement in a particularly cruel and public manner to cause maximum humiliation.

Damages Can Be Reduced (Mitigated):
The court may reduce the award if:

• The plaintiff had little reputation to lose.
• The plaintiff lacked genuine affection for the defendant.
• There was violent family opposition to the match.
• The plaintiff had a permanent infirmity or genetic family illness unknown to the defendant.

Ghanaian Case Law: Lessons from the Courts

Ghana’s courts have applied this action in various complex scenarios:

1. Acheampong v Acheampong: A landmark case where the court allowed a customary law wife to sue her husband for breaching a promise to marry her under the ‘Ordinance Marriage’. The court held that the incidents of the two marriages are different, and a promise to “upgrade” can be legally binding.
2. Afrifa v Class-Peter & Aning v Kingful: These cases established that presenting a ring and Bible are strong indicators of a promise to marry under the Ordinance (a Christian marriage), as these items are foreign to customary rites. Continuous postponement of a wedding and cohabitation do not negate the original promise.
3. Djarbeng v Tagoe: The court held that drinks and money given after the birth of a child were for paternity acknowledgment, not a promise to marry. The court emphasized the need for clear evidence of an agreement, though this decision has been criticized for being overly strict about requiring formal family consent.
4. Ama Serwaa v Gariba Hashimu (Supreme Court): Where parties cohabit and acquire property in anticipation of marriage, and the promise is breached, the property-holding party becomes a constructive trustee. The property must be shared equitably, as it was intended for their joint life. This moves the action beyond mere emotional distress to protecting substantial financial investments made in reliance on the promise.
5. Kwame Addo v Adjoa Duko: Reinforces that gifts given in contemplation of marriage (e.g., an engagement necklace) are recoverable upon breach. Everyday gifts (like birthday presents) are not.

Scope: It Applies to All Marriage Types

The action is not limited to Christian or Ordinance marriages. It is actionable for breaches of promise concerning:
1. Customary Marriages
2. Marriages of Mohammedans
3. Ordinance Marriages

The action for breach of promise is a legal tool that acknowledges the real-world consequences of broken serious commitments—consequences that are social, emotional, and financial.

Disclaimer

This article is for general informational and educational purposes only. It does not constitute legal advice, nor does it create an attorney-client relationship. The content is based on a summary and analysis of case law, statutes, and legal scholarship, including the foundational article “The Action for Breach of Promise to Marry in Ghana: New Life to an Old Rule” by H.J.A.N. Mensa-Bonsu.

Story by Adwoa S. Danso