I promise to marry you… or I do?

Bianca Bernardis-Larratt
Bianca Bernardis-Larratt

Our common law long held that an engagement to marry is a contract; a binding agreement between two people to marry within a specified or reasonable time.  But what happens when one party wants out of the engagement?

In the past the aggrieved party could sue the “guilty” party for a breach of promise, claimng the prospective loss of the benefits of the marriage and the actual monetary loss of expenditure incurred.  In addition, damages could be awarded to a woman for personality infringement based on the iniuria caused by the breach, such as emotional pain or loss of dignity.

This area of law has, however, seen a complete about-turn in the past year.  In a recent case in the Cape High Court, Mr Maritz was engaged to be married to Ms Cloete but later refused to marry her.  Ms Cloete sued for contractual damages for prospective financial loss and also for loss of dignity.  The argument in this case relied heavily on the reasoning of the Supreme Court of Appeal in 2010 and held that contractual damages flowing from a failure to honour a party’s original promise to marry, do not reflect current public policy considerations based on the values of our Constitution.  It was decided that an action in which a party can successfully claim losses on the basis of breach of contract is outdated and no longer forms part of our law.

Reference was made to the fact that in England, Scotland, Australia and most European jurisdictions, breach of promise actions have been abolished.  Repudiation of a promise to marry is no longer seen in such a serious light as it was when marriage was regarded as the only proper course for women and where repudiation of an agreement to do so would be likely to prejudice her reputation.

The view expressed was that an engagement is more of an unforceable pactum de contrahendo (agreement to come to an understanding) providing a spatium deliberandi, a time for the parties to get to know each other better and during which both parties can decide whether or not to get married.  The fact that marriage does not give rise to a commercial or rigidly contractual relationship renders it unacceptable that parties, when promising to marry each other, would contemplate that a breach of their engagement would have the same financial consequences as if they had in fact married.

The Court held that actions based on breach of promise to marry have become obsolete and may no longer be sustained.

Just remember girls, you can still keep the ring!

This article has been written by Bianca Bernardis-Larratt a Director in the Litigation Department at Garlicke & Bousfield Inc.

For more information contact Bianca on 031 570 5431 email : bianca.larratt@gb.co.za

NOTE: This information should not be regarded as legal advice and is merely provided for information purposes on various aspects of litigation.

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