Whether you are presented with the diamond of your dreams or are simply given a lucky packet plastic ring, if you are asked that all important question of “Will you marry me?” and accept, you and your partner need to be aware that you have now entered into a formal contract.
This contract has reciprocal rights and obligations, which cannot simply be terminated without ramifications, as would arise in a normal breach of any other type of contract.
An engagement is a legally binding, partly oral, partly tacit, agreement between two parties to get married, at some point in the future, which should not be taken lightly.
If you give or accept a verbal promise to get married, when you have capacity to do so and are not legally prevented from doing so (by for instance being married to someone else at the time) you have concluded a formal contract to be married, and are bound thereto. This contract will be referred to throughout this article as an “Engagement Contract”.
When engagement is void
There are very limited circumstances which could render a consensual Engagement Contract voidable, meaning that the contract will no longer be binding on the parties. These circumstances include:
Mistake: This will only arise if there is a material mistake as to the identity of the person that you are marrying. For instance, if you think you are marrying a tall, dark and handsome stranger, who in fact turns out to be your half-brother.
Misrepresentation: This is a very important ground, as misrepresentation occurs where, had either party known the truth, they would not have concluded the Engagement Contract. Misrepresentations that could render an engagement void include situations such as not disclosing your sterility, serious mental illness or inducing someone to marry you by claiming a false pregnancy.
Duress and/or Undue Influence: This ground for terminating an Engagement Contract is nearly impossible to prove as the party alleging to this has to prove that they were forced into the Engagement Contract for fear of their or their families’ lives.
Unlawfulness: This ground for terminating an Engagement Contract arises where the marriage would be illegal. For instance, if it is a marriage arising out of incest, or if one of the parties is already married and cannot lawfully remarry for a second time. (This would obviously not be the case in a proposal in a customary union where more than one spouse is allowed.)
Once a party has accepted that an engagement is a contract, one has to deal with the problems that arise where Engagement Contracts are broken off, for any reason not already mentioned above. This could include the other party’s behaviour or misconduct, or one of the parties merely getting cold feet. This breaking off could amount to a breach of contract, otherwise known as breach of promise.
Breaking the promise
Breach of Promise can generally give rise to two distinct causes of action:
A delictual claim: This can arise where the innocent party would be entitled to sentimental damages if the breach was embarrassing or damaging to his/her reputation. This action does not relate to the actual repudiation and whether or not it was actually justified, but rather to the manner in which it was done. Where this injury to a person’s honour, reputation or dignity is accompanied with the intent to do so, then the injured party may invoke this action by means of satisfaction in the form of a sum of money.
A claim for breach of contract based on financial losses incurred: In this regard one has to distinguish between claims for prospective loss and those for actual loss, such as deposits on wedding venues and the like.
In respect of actual losses, to be recoverable, the losses must have been within the contemplation of the parties and the “innocent” party must be placed in the position in which he or she would have been had the relevant agreement – for example, the wedding venue contract – not been concluded.
In the case of Cloete v Maritz ((6222/2010)  ZAWCHC 69; 2013 (5) SA 448 (WCC) (24 April 2013)), which was heard before the Western Cape High Court, the court expressed its opinion that this action is no longer in line with the boni mores of society and/or the Constitution, especially as divorces are now granted on a no-fault basis. In general, the courts seem to be moving towards a way of thinking that dictates that to hold a party liable for prospective losses as contractual damages may lead parties to conclude marriages that they do not want to enter into, purely out of fear of being faced with such claims.
Further, if an engagement gave rise to the same or similar consequences of a marriage, parties may be disinclined to conclude a marriage.
As well as the previously mentioned actions, the general rule governing gifts or donations exchanged or given in anticipation of marriage, such as an engagement ring, is that it should be returned if the marriage does not take place. An engagement ring is essentially an “impliedly conditional gift”, which is only a completed gift upon marriage and, therefore, must be returned if the condition of marriage is not fulfilled.
This is the situation in the United States, where this principle was upheld in the Court of Appeals of Michigan in the case of Meyer v Mitnick (Michigan Court of Appeals (USA) Docket No 213950, 20 February 2009).
The old Roman Dutch authorities, however, seem to be of the opinion that gifts given to the “innocent” party may be retained, irrespective of the Engagement Contract being terminated. Some States in America continue to follow this approach.
In South Africa it is generally accepted that when the party giving the ring calls off the Engagement Contract or causes it to be broken off by his or her own fault, then the ring may be retained by the party to whom it was given. In all other circumstances, the ring should be returned.
So far South Africa has not followed suit in abolishing all the breach of promise actions but it is generally accepted that it should, and that it is only a matter of time before it does so.
Repudiation of a promise to marry is, however, no longer seen in the serious light that it was when marriage was regarded as the only proper path for women and where breach of promise was likely to seriously damage their reputation.
Words: Megan Harrington-Johnson, Partner at Schindlers Attorneys