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Engagement Contract

- Featured article by LAWYERS-ONLINE.CO.ZA

The Laws and Requirements of an Engagement

An engagement is a promise to marry. It is not a normal contract. In order to enter into an engagement, one needs to have the capacity to do so, ie. 18 years of age or older. Minors need the consent of either parents (or guardians), unless certain circumstances are in place or a court order is granted. Mentally ill persons cannot get engaged. Both parties must also voluntarily, of their own free will, consent to the engagement.

The following conditions can render a consensual engagement voidable: a material mistake as to the identity of the person you are getting engaged to will render the engagement void. Misrepresentation – this occurs when, had the innocent party known the truth, he/she would not have become engaged to the other party. If the misrepresentation seriously endangers the likelihood of having a happy and harmonious marriage, the engagement will be regarded as void. It does not matter whether the misrepresentation was made innocently or fraudulently. Misrepresentations that can render an engagement void include failing to reveal or concealing certain personal qualities, such as impotence, sterility, serious mental illness, and alcohol or drug addiction, where there is a duty to do so. Misrepresentation is not only committed by positive false representation, but also by failure to correct an existing misconception. An engagement may also be annulled on the grounds of innocent misrepresentation; for example where a man is coaxed into proposing to his girlfriend in the belief that she is pregnant. Undue influence is also grounds for terminating an engagement. Getting engaged to someone while married to someone else renders the engagement void, as it is against good morals. The unaware party may bring an action against the guilty party.

Terminating an engagement constitutes a breach of promise. Public policy considerations encourage our courts to recognise it as such and to act accordingly. The Supreme Court of Appeal has given some guidance to courts faced with claims resulting from a termination of engagement.

A breach of promise may give rise to either of two distinct courses of action: the ‘innocent’ party may be entitled to sentimental damages if the repudiation was extremely rude and arrogant. This requires that the ‘guilty’ party, in putting an end to the engagement, acted purposely wrongfully (a delictual action).

It does not matter whether or not the termination of the engagement was justified; what matters is the manner in which the engagement is brought to an end. The fact that the feelings of the innocent party were hurt or that he/she felt insulted or abandoned is not enough for a successful claim for delictual damages; and a n engagement may be cancelled without financial consequences if there is a just cause for the cancellation.

Just cause is usually defined as any event, condition or action of one party that jeopardises the chances of a long and happy marriage, and which would induce any right - minded member of society to withdraw from the engagement. Just cause can range from unfaithfulness to an unwillingness or lack of desire to marry.

When people promise to marry each other, they do not contemplate that a breach of their engagement will have financial consequences similar to those of a divorce. When terminating an engagement, one has to distinguish between claims for prospective losses and those for actual losses.

Case Law applicable to the laws of engagement include Guggenheim v Rosenbaum , whereby a divorced woman, while living in New York, met the defendant who was domiciled in South Africa. They fell in love and agreed to marry in South Africa. She sold her car and some furniture; she put some furniture in storage and gave up her apartment and her job. When she arrived in South Africa, he repeated his promise to marry her. However, later he refused to marry her. She sued him for damages and satisfaction. It was held that a valid engagement existed. She was entitled to sue for actual loss and prospective loss (i.e. some positive and some negative interest) and she could sue for satisfaction.

In another case, Schnaar v Jansen, the man cancelled his engagement after discovering one of his fiancé’s uncles had murdered his wife, that another uncle had entered into an interracial marriage and her brother had served a prisons entence for theft. It was held that he could not repudiate on this basis. She was under no obligation to disclose these facts. Therefore, she could claim damages from him.

Date: 13th May 2014
Case Law –
1. Guggenheim v Rosenbaum(2) 1961 (4) SA 21 (W)
2. Schnaar v Jansen(1924) 45 NLR 218

Engagement Contract - Legal Information South Africa