You look forward to the day he goes down on one knee, or when she finally agrees to be your wife. But how does engagement really work, and what happens when it all goes wrong?
- What is the legal status of an engagement?
This can be defined as an agreement to enter into a legally recognised marriage on a specific or determinable date. The law views it as a special kind of contract. Although not commercial in nature, engagements have legal consequences. Termination thereof can lead to the return of gifts exchanged between the parties, or even the payment of damages by one to another.
- What are the legal requirements for an engagement?
· Parties must have legal capacity: they should be majors, or, in the case of being minors, must be assisted by their legal guardians. A person who lacks the mental capacity to appreciate the consequences of his/her actions, cannot enter into an engagement;
· The marriage must be permissable. An engagement cannot come into existence where either or both parties are already married, or if the law prohibits them from being legally married to one another, for instance due to being close blood relations;
· Concensus: An offer to marry must be made, which must be accepted. The parties must appreciate that they are in fact agreeing to marry on a specific date, or within a reasonable time;
· There are no formal requirements. An informal verbal agreement will suffice.
- What if I made a mistake or was misled?
· If a party was under a mistaken impression regarding a material aspect of the engagement, it would not have come into legal existence. If X believes he is asking Y to marry him, while in fact it is Y’s twin sister Z, no engagement comes into existence;
· Mistake regarding an immaterial aspect, such as realising that the other party is not as loving and supportive as you thought, will not affect the validity of the engagement;
· If a party makes a misrepresentation to the other, an engagement will still come into existence. If however, this misrepresentation is material (such as a man being aware that he is sterile, but promising a woman their own children), a party can cancel the engagement.
Whether a mistake or misrepresentation is material, depends on the facts of each particular case.
- How can an engagement be terminated?
· By mutual consent;
· One cannot force another to marry you. Unilateral termination, for whatever reason, will terminate an engagement;
· When circumstances occur that jeopardise the prospect of a happy future marriage, a party may terminate an engagement.
- What if I suffer due to the other party’s decision to terminate?
If a party terminates an engagement unlawfully (where for instance the party has no legally recognised basis for his decision, or fails or refuses to provide one), the other may claim damages. This may include financial loss (such as expenses relating to the wedding), or compensation for emotional suffering. To determine whether a termination was unlawful, each case must be considered on its own merits.
- What happens to gifts that we exchanged?
· Gifts not given with a view to marriage need not be returned. These are usually small gifts or those which have already been consumed;
· Gifts given in anticipation of marriage, or given on condition or subject to the parties actually getting married, must be mutually returned if the engagement has been lawfully terminated. Engagement rings or expensive gifts will usually fall within this category;
· If one party terminates the engagement unlawfully, he must return such gifts and may not claim back those given by him.
It is clear that if your engagement is terminated, close scrutiny will need to be applied to determine the consequences. Ensure that you obtain accurate legal advice.
Article written by Francois de Kock of Juan Kotze Attorneys. Contact them on 011 892 1019, or francois@therescueshop.co.za or juan@therescueshop.co.za.
