Can she sue me for breach of promise to marry?

Dear Mirror Lawyer, I think I am heading straight for trouble. Two days ago, my wife who had been missing since July 24, 2014 showed up at my door with her suitcases.

She gave an excuse for her disappearance but that is an issue for another day. Just yesterday, I received a WhatsApp message from Ama, my girlfriend, confirming that she had heard of the arrival of my wife and that if I decide to withdraw from our marriage ceremony slated for next month, she would deal with me mercilessly

She further promised to sue me for breach of promise to marry and to recover damages for “wasting” her wedding dress, the jollof caterer’s time and even the time of the flower girls!

I am very worried and I do not know what to do. I honestly thought my wife was dead. Is there any defence available to me should Ama go ahead with this threat?

Kwame Nsiah, Cape Coast.

Dear Kwame, I must say that you have yourself in a very tight position. I sympathise with you. Generally, marriage is a social contract between two persons who have agreed to live together as husband and wife.

As such, when persons agree to get married, a social contract may be presumed from such an agreement which may eventually result in an action for breach of promise where that contract is breached.

However, where both parties consent to mutually abandon the contract, then no breach will be occasioned. It is necessary for a party claiming a breach of promise to marry to provide evidence that indeed the promise was made.

This may include calling witnesses or providing some material evidence which corroborates the testimony. Where the party succeeds, he or she may be awarded damages. However, this is Ama’s headache and not yours.

Although Ama can bring an action for breach of promise to marry against you, your defence can be based on the fact that you already have a valid marriage subsisting and any other marriage will constitute bigamy.

Under Section 263 of the Criminal Offences Act, 1960 (Act 29), “A person commits bigamy who, knowing that a marriage subsists between that person and another person, goes through the ceremony of marriage, whether in Ghana or elsewhere, with any other person.”

However, if your wife had failed to show up by July 24, 2014, you could have gone ahead to marry Ama and it would not have been characterised as a criminal offence.

This is because Section 263(2)(a) of the Criminal Offences Act, 1960 (Act 29) provides that, “A person shall not be convicted of bigamy or of an offence under Section 264 if at the time of the subsequent marriage the former wife or the former husband has been continually absent from that person for seven years, and has not been heard of by that person as being alive within that time, and if before the subsequent marriage that person informs the other party to the marriage of the facts of the case so far as they are known to that person.”

I do not think this will be applicable to your case since your wife returned before the expiration of the time limit, that is seven years. Thus, any subsequent marriage between you and Ama will be regarded as bigamy.

In the case of Aning vs Kingful, the court was of the view that, “A promise to marry generally was in law a promise to marry within a reasonable time.” Usually, where one party opts out of the contract without any justifiable reason, it may result in a breach.