Consent in Promise to Marry Cases

Last Updated on December 7, 2019 by Legalseva.net

“What we seek is the reign of law, based upon the consent of the governed and sustained by the organised opinion of mankind.”

The notion of consent in the law of marriage has two completely different aspects. The first is the consent, external and objective, required of parents or other third parties: the second is the consent, subjective and internal, of the would-be spouses themselves. It is this latter consent in domestic law that is to be analysed in the present discussion. The requirements in English law as to the consent of parents and guardians are not mandatory but directory only: the absence of this tutelary consent does not necessarily invalidate a marriage.’ On the other hand, it is said that without the consent of the parties themselves at the time of the ceremony there can be no valid marriage: consensus non concubittcs facit mutrimonium.

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The consent of the parties themselves to their own marriage must itself be understood in two main senses. The one consists of such rationality of the parties, ascertained by reaching an arbitrary age (fixed by law) or by some other means, whereby the parties shall be deemed capable of understanding the nature of the marriage ceremony and physically apt to take part in it; this is basically a question of physical and mental maturity. The other takes for granted the existence of rationality in this sense; it demands that the parties in fact freely give their own mental consent to the marriage in question. Where rationality is not in issue in the cases to be considered, externally there will be the appearance of the voluntary agreement by the parties to a particular marriage, but the investigation will show that the consent is possessed of no reality.

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One other general point needs emphasis. While habitually speaking of marriage as a contract, English lawyers have never been misled by an imperfect analogy into regarding it as a mere contract, or into investing it with all the qualities and conditions of ordinary civil contracts. Lack of consent sufficient to rescind an ordinary commercial contract may not justify the annulment of a marriage; and where marriage is annulled through lack of a party’s consent, very clear and cogent evidence must be given to rebut the presumption that it has in fact been given. Subjective consent may be classified as follows:-

The non-existent mind : (a) Mental weakness ; (b) Intoxication, drugs, hypnotism ; (c) Health; (d) Duress and force. (a) Sham marriages; (b) Mistake as to nature; (c) Mistake as to effect.
(2) Abuse of, or mistake as to the nature of the ceremony: Mistake or error as to the person. While these defects all relate to consent, the existence of some of them only make a marriage voidable, whereas others make a marriage void ipso jure.

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National-level legislative compliance with the Universal Declaration of Human Rights, which recognizes the right to “free and full” consent to a marriage and acknowledges that consent cannot be “free and full” when one of the individuals involved is not sufficiently mature to make an informed decision about a life partner. Early marriage or child marriage is defined as the marriage or union between two people in which one or both parties are younger than 18 years old. However, women over the age of 18 can also be forced into marriages without their consent, especially in low-income settings and where women’s education is limited. In a number of countries, particularly in poorer rural areas, girls are often betrothed or committed to an arranged marriage without their knowledge or consent.

Such an arrangement can occur as early as infancy. Parents often see marriage as providing protection for their daughter from sexual assault and offering the care of a male guardian. Many parents often feel that a young girl is an economic burden and therefore wish to marry off their young daughters before they become an economic liability or before they shame the family with an out-of-wedlock birth. In addition to the Universal Declaration on Human Rights, the 1989 Convention on the Rights of the Child guarantees the rights of children and adolescents, including freedom from discrimination, abuse and exploitation; participation in decisions affecting their lives; privacy; and access to education, health information and services for their well-being. All of these rights have direct implications for adolescent and young women’s reproductive health.

Marriage is an institution which is to be entered into by the parties with their free and full consent. The UN Convention on Consent to Marriage, Minimum age of Marriage and Registration of marriage as well as the Recommendation of the UN General Assembly which was adopted in 1965 provide consent as a prerequisite for the conclusion of a marriage.

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Pursuant to article 1 of the UN Convention, no marriage shall be legally entered into without the full and free consent of both parties. This requirement is further strengthened by the Recommendation. The Convention, as well as the Recommendation, put an obligation on member states to make sure that future spouses have decided, of their free will and consent, to enter into marriage. One way of compliance with this obligation is the harmonization of domestic laws in line with the international commitments of the countries. Ethiopia is one of the countries who have acceded to this Convention. As a result, the Constitution, as well as the RFC and the regional family codes, incorporate consent as a validity requirement of marriage.

In some parts of Ethiopia, the culture does not require the consent of the future spouses for the conclusion of marriage; rather what really matters is the willingness of their parents to tie their children in the bond of marriage. In effect, many marriages have been concluded not on the basis of the willingness of the spouses but of their parents. This has been considered as a ground for many disputes in families. Considering this deep-rooted culture, many efforts have been made to bring change, particularly through the use of legislations. In this respect what comes in the forefront is the 1995 Constitution. Article 34/2 of the Constitution reiterates the requirement that marriages should be entered into upon the free and full consent of the parties. In addition to this, the RFC considers the free and full consent of the parties as a validity requirement for the conclusion of a marriage.