by Dr Graziella Cricchiola – Junior Associate
Article 1233(g) of the Civil Code provides that a promise of marriage requires a private writing. This private writing makes the parties bound to each other. Article 16 of the Universal Declaration of Human Rights provides that every person has the right to marry and have a family. It is also essential that marriage is entered into with the free and full consent of the intending spouses.
By means of article 5 of Chapter 5 of the Laws of Malta, the law provides that if parties agree to enter into a promise of marriage and “wilfully and unlawfully commit a breach thereof, or shall, after making or entering into such promise, contract, or agreement, have unlawfully refused to perform the same within a reasonable time, after request made, (of the reasonableness of which time the court shall be the competent judge), the party injured shall be entitled to maintain an action for damages against the party guilty of such breach or non-performance, in such manner, and subject to the same rules, as are by law prescribed, for the recovery of damages for the breach of any other promise, contract, or agreement.” In such a case, the jilted party would be entitled to material as well as moral damages, provided that there would be no sufficient justification to cancel the marriage. This was retained in the judgment of Giusa Bellia vs Giuseppe Grech.
Chapter 5 of the Laws of Malta is one of the exceptional instances in Malta where a law specifically caters for moral damages as compensation. Undisputed is the fact that nowadays it is uncommon that individuals enter into a promise of marriage. Legislation provides that moral compensation could be granted whenever a written promise of marriage exists between the parties. Contrarily, in the absence of a written promise of marriage, the jilted party would not be able to claim non-pecuniary damages but would have to rely on article 1031 the Civil Code to recover material damages. This provision of the law holds that every person is responsible for damages arising through his own fault. In actual fact our courts, in the case of Farrugia vs Chircop, Vol XXIV.1.945 decided that:
“In-nuqqas ta’ kitba twassal ghall-konkluzjoni biss li l-parti leza ma tistax titlob id-dannu taht dik il-ligi, pero’, dak in-nuqqas ma jtellifx id-dritt ta’ l-istess parti leza li titlob dannu taht il-principji generali ta’ ksur ta’ kuntratt,.”
In those instances where sufficient reasons subsist for any of the parties to break off the engagement, the jilted party may not sue for the recovery of any damages. These valid reasons include adultery, violent attitude, serious illness, intrusion of third parties and long absence. In the case, of Marica Spiteri vs George Cachia decided on the 26th June, 2009, the Court of Appeal found that the girlfriend was justified for breaking off the marriage after she was informed by the parish priest that her boyfriend had a relationship with another woman, from which relationship he had a child. The Court awarded damages to the girlfriend to cover all expenses already made for the wedding. In light of the fact that in this particular case, the parties did not have written promise of marriage. In this regard, the Court held,
“Illi din hija kawza ta’ reziliment ta’ gherusija. Ghalkemm il-partijiet ma kienux irriducew il-weghda taz-zewg bil-miktub, u lanqas ma ghamlu skambju formali ta’ crieket ta’ gherusija, mhux kontestat, ghall-fini ta’ din il-kawza, li l-partijiet kienu “gharajjes” ghal kull fini u effetti tal-ligi.
Kienu ilhom johorgu flimkien ghal madwar sitt snin u nofs u kienu waslu biex ftehmu li jizzewgu, tant li kienu xtraw dar u hadu hsieb iwaqqawha u jergghu jibnuha skond ix- xewqa taghhom; kienu anke bdew jarredaw l-istess dar u ffissaw il-jum ghat-tieg. Kollox kien lest ghat-tieg li kellu jigi celebrat bir-rit kattoliku.”
It must also be pointed out that, the jilted party may not attempt to claim all material damages which he/she suffered due to such breakup but may sue for those expenses incurred which are consequential to the future marriage.
The right to claim damages after a broken engagement is not limited to the actual parties in the relationship. As a matter of fact, third parties who prove that they have suffered damages as a result of the breach of promise of marriage has a right to compensation. This was seen in the jugdment of Bernard u Lucienne konjugi Gatt vs Keith Borg (2017) . In this case, the plaintiffs, as parents of jilted party, had paid for all the wedding expenses. The Court held that since defendant breached promise of marriage made with the plaintiff’s daughter, without just cause and without any fault attributed to her, he was civilly liable and consequentially ordered to pay all material damages emanating from such breach.
So if you are planning to put a ring on your girlfriend’s finger on Valentine’s day, look beneath the surface and consider the legal implications behind such proposal.
Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Graziella Cricchiola on graziella@abalegal.eu.