AMISSAH J.A.: The short point raised in the preliminary objection of the defendant is whether a spouse married under customary law could, while that marriage subsists, sue the other spouse for breach of promise to marry under the Marriage Ordinance, Cap. 127 (1951 Rev.). For the purposes of an answer, the question ought to be subdivided as follows. In the first place, is a spouse to a customary marriage capable of bringing an action against the other, while the customary marriage subsists? If so, is breach of promise of marriage under the Ordinance an action which could be brought by such an injured spouse?
As to the first question, the decision of Archer J. in Smith v. Smith [1965] G.L.R. 730 is of great assistance. That case was one where a woman married under the Ordinance sued her husband in tort. The circuit judge had non-suited the woman on the ground that “at common law no action lies between husband and wife.” But Archer J. upon consideration of the Married Women’s Property Ord…