When a couple gets married they enter into a contract with each other. However, many ask whether or not the engagement is a contract, and if so, are there consequences for breaking it off?
What is an engagement?
In order to enter into a valid engagement to be married the following requirements must be met:
- Both parties must have the capacity to act, which generally means that parties must be older than 18 years or if they are minors, that they have the necessary consent from their guardians.
- Both parties must voluntarily consent to the engagement. A material mistake, such as the identity of either of the parties, will render the engagement void. There must also be no misrepresentations made by either of the parties; in other words, where it would have resulted in the contract not being concluded, had the other party known the truth.
- Both parties must be permitted by law to marry each other. For example, you may only be engaged to one party, unless a polygamous engagement applies under African Customary Law.
- One may not marry a sibling.
It is important to note that there is no law in South Africa that requires an engagement before marriage.
Once a date for the marriage has been determined, there is a reciprocal duty to marry on that date, unless the date is changed by mutual agreement. Further, if no date has been determined, it is presumed that the marriage will take place within a reasonable time. Nevertheless, either of the parties may terminate the engagement, which may or may not attract a claim for damages or return of gifts.
What ends an engagement?
An engagement can be terminated in the following ways:
- Death of either parties
- Mutual agreement
- Withdrawal of parental consent
- Breach of promise
- Termination by one party that is justified and based on sound reasons
It is important to establish whether there is a just cause for cancellation. If there is, the engagement may be validly terminated. A reason such as sterility or criminal activity, if it was only brought to the attention of the other party after agreeing to marry, may provide enough grounds to break off the engagement. If both parties agree to terminate the engagement, all gifts given in anticipation of the marriage, including the engagement ring, must be returned.
What if the engagement is broken unexpectedly?
If one party breaches the promise to marry without justifiable reasons, the innocent party can, according to our law, institute a claim for damages, provided that the losses were within the contemplation of the parties. The innocent party can claim expenses incurred in anticipation of the wedding, thus placing the innocent party in the financial position he/she would have been had the engagement never been entered into. Furthermore, the innocent party may keep or claim back the engagement ring as part of costs incurred.
In the case of Van Jaarsveld v Bridges, the court decided that a party cannot successfully institute a claim for prospective losses on the basis of a breach of promise to marry, because an engagement is not an ordinary contract in the context of contractual damages and should therefore not be placed on a rigid contractual footing. This means that a party may not institute a claim for damages placing him/her in the position he would have been had they gone through with the marriage. Previous court judgements indicate that compensation will be awarded at the discretion of the court and that each case must be evaluated on the basis of its individual circumstances.
In conclusion, it is important to note that a promise to marry is an agreement which attracts legal consequences; therefore, one should not be hasty when deciding to ask the big question.
- Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA).
- Cloete v Maritz 2013 (5) SA448 (WCC).
- Bull v Taylor 1965 (4) SA 29 (A).
- Georgina Guedes, 23 October 2013, Mail and Guardian, “Five fallacies about engagement rings”.
- A Guide to Divorce and Separation in South Africa, “Engagement and the Law”.
- Ronald & Bobroff, “The engagement”.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)