Ifeoluwa Esther Kolawole,

17th Oct, 2023 : 9;16am

Introduction

In the touching tunes of Ric Hassani's song, "Thunder Fire You," love's painful journey finds its voice especially where he cries "you never did deserve me, e no go better for you” It is a line that strikes a chord to the tale of many young Nigerians. These days social media is constantly interrupted with beautiful engagement photos from Paris or the delightful ring-on-the-finger photo with the caption - off the market, indicating the instance of an engagement between two lovebirds. It’s a time of life so beautiful and precious one would imagine why the long claw of the law is present in such an affair. Oh, but it is and it’s so present it is central to not only the definition of what such an affair is about but also outlines the conduct of the parties upon entering such a loving agreement; The agreement to marry, and surprising to many offers a helping hand to the wrecked soul who sings along to Thunder fire you, this time with deep reflection. Let’s explore the concept of Engagement in Nigeria and everything legal about it.

So What is Engagement under Nigerian Law?

Engagement, within the framework of Nigerian family law, represents a formal commitment between two individuals to marry each other on a specific or determinable future date. This commitment is often accompanied by the exchange of promises, gifts, or tokens of affection. There are no strict requirements for the formalization of an engagement as our laws allow for its establishment through either oral or written agreement.

Legally, an engagement is classified as a "pactum de contrahendo," signifying a genuine intention to form a binding obligation and there exist consequences from this action. So when you tell a lady that you love her and would love to marry her and she agrees.  Here are some things to keep in mind.

In the realm of common law in Nigeria, something intriguing happens when engaged couples decide to cohabitate – they embrace a shared life that goes beyond the traditional boundaries of engagement. This concept is known as 'agency by cohabitation,' and it brings a touch of practicality and mutual responsibility into the legal sphere of romantic relationships as now the woman can pledge the credit of the man especially when she purchases items that are household items, basically saying “I will collect these items, when you see my husband, collect money from him” and this is legal. Picture an engaged couple who have moved in together, created a shared space, and embraced each other's lives as a team – buying groceries, household necessities, and managing the day-to-day responsibilities as a unit. In such a situation, the law recognizes that the woman in the relationship can, in many cases, make important decisions on behalf of the man. This includes making purchases for the household, such as groceries, clothing, and other necessities, even if they are not officially married.

This rule comes from the courts ruling in very notable cases such as Drew V Nunn where the court decided that when engaged couples live together, the woman can make decisions about household necessities. It's presumed that she has the authority to do so. In law, where parties are engaged and cohabiting it is presumed that such lady has the authority to pledge her fiancée credit, in so far they are cohabiting in a domestic establishment and there’s intention of parties to cohabit then an agency has arisen. This legal principle recognizes the practical dynamics of modern relationships. It acknowledges that partners often share responsibilities, even before marriage.

However, it's important to note that this doesn't mean the woman can make decisions about everything on the man's behalf. It specifically pertains to important matters related to the household, like groceries, clothing, and other necessities including her personal upkeep, so yes, she can buy that bone straight hair and pledge your credit to it.

Also, The dissolution of an engagement is regarded as a breach of contract which means when a man or a woman promises his/her lover that they will marry them by popping the question and this person or the person who accepted the proposal goes ahead to call of such wedding, such act is a tortious act against the other party who is disappointed bu such withdrawal and generally is seen in law as a breach of contract.  This breach, referred to in legal terms as the breach of promise to marry' carries significant legal ramifications for all parties involved. It is then important that parties understand the positions of the law as regards the relationships they create under the light of an engagement so as to avoid being on the wrong side of the law and being in the open to the wrath of usually, the woman.

Okay, so now let’s talk about what must be present or done before one can say they have an engagement?

What does it truly mean to have a valid engagement? Is it merely the exchange of 'will you marry me' and 'yes, I will'? Far from it. Legally speaking, an engagement is tantamount to a binding contract involving a voluntary agreement between parties, enforceable by law. While a written agreement may be required in some cases, as seen in the decision of the court in Ezeanah v Attah, the court can still acknowledge the intent to marry based on societal norms.

Relationships progress through stages like proposal, courtship, introduction, and engagement before culminating in marriage. Marriage, viewed as a legal contract, necessitates specific elements for validity: offer, acceptance, intention to establish a legal bond, consideration (exchange of something valuable) and legal capacity to contract.

However, with the freedom to contract comes the implication of the sanctity of those contracts. Like any other contract, marriage has its requisites. Before legal recognition and enforcement, specific conditions must be met.

In essence, an engagement signifies a significant commitment with associated rights and responsibilities, not just expressions of love. These key factors determine its validity.

1. Offer/Proposal

An offer in engagement means one person asks another to get married. It's like a personal invitation, not a message to everyone. If the invited person says yes, they're actually making the offer, and the first person can agree.

To be a good offer, it must be very clear. If the person who made the proposal changes their mind before it's accepted, they have to tell the other person. Also, the offer can't have any extra conditions, or it won't count until those conditions are met.

For example, if someone says, "Will you marry me?" and the other person says, "Yes," they're making the offer. If the first person later changes their mind, they need to say so.

If there are extra conditions, like "You have to decide by Friday," then the offer isn't good until Friday. And if the second person says, "I'll marry you, but we have to have a big wedding," that's not accepting the original offer; it's making a new proposal.

2. Acceptance of Proposal

Acceptance in contract law means that the person receiving an offer agrees to its terms, creating a binding agreement. This agreement must match the original offer exactly (mirror image rule). It needs to be communicated clearly, which can be done through talking, writing, or implied actions. The acceptance should happen within a reasonable time frame or by any specified deadline. Notably, staying silent usually doesn't count as acceptance, and the person making the offer can specify how they want to be informed.

Note the following about acceptance:

• Acceptance can't come with new conditions or terms. If someone says yes but only under certain conditions, it's not a valid acceptance. For instance, agreeing to marry only if sent abroad doesn't count as valid acceptance of an offer for marriage, which is generally described as engagement

• If the person receiving the offer suggests different terms, it's not considered acceptance. It's like saying, "I'll agree if we do it this way instead." This ends the original offer. The original terms must be accepted as they are.

3. Intention to Create Legal Relations

In engagements, as in contracts, there must be a clear intent from both parties to enter into a legally binding agreement. This means that both individuals must genuinely agree to marry, with a mutual understanding and a meeting of minds that they are committing to a legal marital relationship, rather than just cohabitation.

This principle is assessed objectively, meaning it is based on how a reasonable person would interpret the situation, rather than personal feelings or beliefs. Parties can explicitly state if they do not intend to form a legal contract for engagement, but this must be communicated clearly and without ambiguity.

Additionally, both parties must have the legal capacity to enter into an engagement. This means they must be mentally sound and not under any form of undue influence

4. Capacity to Marry

For an engagement or marriage contract to be valid, both parties must meet certain requirements. These rules are outlined in section 3 of the Marriage Act. This section primarily deals with invalid marriages, but it also applies to engagements.

• Single Status: Both parties must be single. If one person is already married and tries to marry someone else, it's called bigamy and it's against the law.

• Age: Generally, both parties must be at least 18 years old to get engaged. This ensures that they are old enough to understand and agree to the commitment. If one of the parties is under 18, their offer or acceptance of marriage is not valid, even if they agree to it again when they are older.

• Mental Capacity: Both parties must be mentally capable of understanding the agreement. If one person is not of sound mind, the agreement is not valid. If someone is mentally unwell or unable to understand what they're agreeing to, they cannot make or accept an offer of marriage.

• Consent for Minors: If one party is under 21 and not a widow or widower, they need written consent from their parents or guardian for the marriage to be legally married.

• Marriageable Age: If both parties are of marriageable age (usually over 21), parental consent is not required. 

Now that we have looked at what makes a Valid Engagement, let's talk about the little point I made earlier, the breach of promise to marry.

We know this happens when one party reneges from the vow to marry a person whom he or she had earlier agreed to marry either in writing or in the course of their oral conversation. So then when can we say if has really occurred, well there are some interesting and important facts to note. In the case of Ezeanah v Attah, it was established that two conditions must be met to prove a breach of promise to marry.

First, the jilted party must demonstrate that there was a promise of marriage, recognized under the Matrimonial Causes Act, 1990, Islamic Law, or Customary Law. So here, a valid promise, especially for marriage, is more than just talking about it casually. It's when someone clearly and sincerely says they want to get married to someone else. This shows a real commitment. It could involve specific things like giving an engagement ring or making plans for the wedding. Both people need to truly mean what they say, and the promise shouldn't be made as a joke or under pressure. This genuine promise is the foundation for any case involving a broken promise.

Secondly, the party reneging must have genuinely failed or refused to fulfill the agreement. This means that if someone makes a promise to marry and then decides not to go through with it, they must have a good reason for doing so. This reason should be reasonable and fair in the eyes of the law. For instance, if unforeseen circumstances arise that make marriage impractical or impossible, it might be considered a justifiable reason. However, simply changing one's mind without a valid excuse would likely be seen as a breach of promise. This requirement ensures that promises are taken seriously and not broken arbitrarily, protecting the rights and expectations of both parties involved. It establishes a standard of accountability in cases where a promise to marry is not upheld, and provides a basis for determining whether a breach has occurred. Usually, the breach can occur in two forms which are non-performance and anticipatory breach. Non-performance happens when a set wedding date is not honored or if a necessary condition, like parental consent, isn't met. For example, if a groom backs out on the wedding day or a bride insists on a condition that isn't fulfilled and an anticipatory breach occurs when one party decides to cancel the wedding before the agreed date. This can include situations where a party suddenly chooses to marry someone else, leaving the jilted party stranded and disappointed on the promise made to marry him or her. An example is if a bride or groom runs off with someone else before the planned wedding date, this clearly shows such person has not intention to fulfill the promise of marriage made to the woman or man whom they have promised to marry and would be considered an anticipated breach.

So what happens now when a person is abandoned by another who promised marriage to them?

Well they can decide to run after the party who engaged them and beg such person not to back out of the agreement so as to avoid the embarrassment such an action might cause to them, this usually may not work and that’s where the other nice to hear alternatives come in.

First, the person to whom there has been committed a breach of promise to marry has valid claim to compensatory damages. If someone breaks a promise to marry, they might have to pay money to make up for any costs or feelings of sadness caused by the broken promise. For example, if one person spent money on things like booking a venue or buying wedding clothes, they could get that money back. They might also get compensated for feeling really upset or embarrassed because of the broken promise. To seek compensation or remedies for a breach of promise to marry, the hurt party must show they suffered actual harm or losses because of the broken promise. This means they need to prove they faced real, measurable difficulties. This could include things like emotional distress, money spent on wedding plans, or damage to their reputation. For instance, if someone spent a lot on wedding arrangements and the other person cancels, they can ask for that money back. This rule ensures that legal action is taken when there's clear, provable harm, rather than resulting to unlawful means.

Another claim they have when they approach a court in Nigeria is to request for an order allowing for and mandating restitution.  This is like a way of giving back. If there were any gifts or special things given because of the promise, they might need to be returned. For instance, if there was a ring given as a promise to marry, it may have to be given back to the person who gave it. This helps make sure things go back to how they were before the promise was made.

It is important to note that just in same way the person who approaches the court to enforce claims on the ground of breach of promise to marry has rights that allow them to do that, the person who pulls out of the marriage is allowed defences to the claims of breach of promise to marry and they come in various ways.

First, they can assert and can prove that there was not a valid promise to marry in the first place as the elements as highlighted earlier in this piece were not present in the conversation or interactions between both parties. Under this head, they can prove that they never made an offer or even accepted an offer of engagement.

Secondly, the party who calls of the engagement can defend his actions on the grounds of duress or Coercion and where he can prove that the other party forced or coerced him making the promise, it may not be considered legally binding. So, if he made the promise to escape bodily harm to himself or properties, he is allowed to use such incidence as a defense to his actions of withdrawing from the promise to marry as clearly he did not intend to enter such legal relations with other party on the mind of his own and freely.

Third, Fraud or Misrepresentation, If the promise was made under false pretenses or with misleading information by any of the parties prior to the agreement, it may not be enforceable.

Fourth, Impossibility: If circumstances arise that make it genuinely impossible to fulfill the promise (e.g., serious illness or death) it may serve as a defense.

Finally, ofcourse, if there is a mutual agreement to cancel the engagement so if both parties agree to cancel the promise and move on, it would serve as a defense against a claim of breach.

The Question on Bethrotal: Does Bethrotal Qualify as a Valid Promise of Marriage?

The question of whether betrothal qualifies as a valid promise of marriage is a captivating one, deeply rooted in both cultural traditions and legal principles. Betrothal, often practiced in many cultures, symbolizes a significant commitment to marry. However, from a legal standpoint, betrothal alone does not necessarily establish a concrete right to claim a breach of promise to marry. The critical distinction lies in the fundamental elements of a promise to marry within the legal framework. A valid promise to marry typically requires the consenting parties to agree or consent to marriage when they have reached the age at which they are legally capable of making such a commitment. Betrothal often occurs at an early age, and the legal capacity to form such agreements may not yet be present.

In the eyes of the law, betrothal alone does not equate to a legally binding promise to marry. However, the intriguing part comes when the child who was betrothed reaches the age at which they can legally consent to marriage. At this point, if they choose to ratify the betrothal agreement, it may indeed hold legal weight. In other words, the act of ratification by the individual when they are of marriageable age is crucial to transform the betrothal into a legally valid promise of marriage. So, while betrothal is a cherished cultural tradition, it must be carefully distinguished from a legal promise to marry. Only when the parties involved, particularly the one who was betrothed, reach the age of legal consent, can the betrothal be transformed into a legally enforceable commitment to wed.

Conclusion

In the symphony of love and commitment, the concept of engagement in Nigeria harmonizes cultural traditions with legal principles. It's not just a romantic journey but a path laden with legal significance, rights, and responsibilities. As the Ric Hassani lyrics remind us, a promise to marry is a solemn commitment, and the law takes it seriously. From "agency by cohabitation" to the breach of promise to marry, the legal landscape surrounding engagements is intricate and multifaceted. It recognizes that modern relationships often involve shared responsibilities, even before marriage. Yet, the heart of the matter remains the same: a promise to marry is a binding pact, and understanding the legal intricacies will help navigate the labyrinth of emotions and expectations. It safeguards the rights and interests of all parties involved, preserving the sanctity of romantic commitments.

Moreover, the intriguing question of betrothal underscores the distinction between cultural practices and legally binding promises. While cultural traditions hold their own significance, the law looks for the age at which individuals can legally consent, thereby transforming betrothal into a legally enforceable commitment to wed. As you venture into the world of engagements and love, remember that your promises hold weight and carry responsibilities. Recognizing the legal implications, and the gravity of these commitments, will guide you in safeguarding your rights and ensuring that your journey through the beautiful symphony of love is both joyful and legally sound.

N/B: Please note that this information is not a comprehensive overview of the topic and one would need tailored advice from a legal professional in respect to their particular situation. You can reach out to the author.