Macfoy v Reffell

Facts

In 1935 he promised to marry her if she had intercourse with him and a child was born. A child was born. In 1937 he repeated the promise and did not marry her.

Issue

Did the later statement turn an illegal promise into a lawful one?

Held

Graham Paul CJ held it did not. The action failed. The repetition was an affirmation of the original illegal promise, not a fresh promise.

Principle

A promise to marry given in return for sexual intercourse is illegal. Saying it again, after the child is born, does not make it enforceable.

Why it matters

Distinguish Fender v Mildmay, where the fresh promise came after a decree nisi and was not bought by the intercourse.

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