Is breach of promise to marriage a valid cause of action in our law?

When a person proposes marriage and the other person accepts the proposal and they become engaged, they are said to have concluded a contract to marry in the future. When an engagement is called off it is theoretically possible that the aggrieved party may sue for breach of promise.

The law regarding the breach of promise to marry

The unfortunate reality of the matter is that it is not easy to succeed with a monetary claim against the person who did not fulfil his/her promise to marry.

Previous court judgments 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

Over the years, our common law has recognised the principle that the aggrieved party has a claim for breach of promise. The aggrieved party could claim on the following basis:

  • a delictual claim under the iniuriarum for contumelia (damages for humiliation as a result of the breach)
  • a contractual claim for financial loss suffered.

In Van Jaarsveld v Bridges (2010) SCA it was found that no claim in South African law exists other than actual expenses incurred in the planning and preparation of the marriage. Harms DP drew attention to a court’s rights and more importantly the duty to develop the common law, taking into account the interests of justice. He stated that he was unable to accept that parties, when promising to marry each other would contemplate that a breach of their engagement would have financial consequences as they had in fact married. He opined that an engagement is more of an unenforceable pactum de contrahendo providing a spatium deliberandi: “a time to get to know each other better and in which they would decide whether or not to finally get married.”

The court concluded 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 or her in the position he would have been had they gone through with the marriage.

In Elsie Sophia Cloete v AWJ Maritz (2013) the question whether or not the claim for breach of promise is a valid cause of action in South African law was once again considered. The Cloete focused on the below stated three aspects:

  • she wanted repayment of R26 000.00 that she had given Maritz in 1994-1996
  • she wanted R6.5million to make up for the financial benefits she would have enjoyed had they concluded marriage, plus R8 500.00 of maintenance for 25 years.
  • she also wanted R250 000.00 in damages.

Maritz denied the allegations made and stated that Cloete was the one who called off the engagement. He also brought a special plea that “breach of promise” does not constitute a valid cause of action based on the above Supreme Court of Appeal decision in Van Jaarsveld v Bridges.

Henney J stated that “clearly, to hold a party accountable on a rigid contractual footing; where such a party fails to abide by a promise to marry does not reflect the changed mores, morals or public interest of today” and “it is my view that considerations of public policy and our own society’s changed mores cannot permit a party to be made to pay prospective damages on a purely contractual footing, where such a party wants to resign from a personal relationship and thus commits a breach of a promise to marry. Such a situation is in my view entirely untenable and cannot be allowed.” He also referred to Sinclair’s The Law of Marriage Vol 1 (1996) which submits that to hold a party liable for contractual damages for breach of promise may in fact lead parties to enter into marriages they do not in good conscience want to enter into, purely due to the fear of being faced with a claim. This is an obvious untenable situation.

Conclusion

It is clear that the courts believe that a claim for breach of promise is not a valid cause of action in our law. As it appears from the above case law, no claim in law exist other that actual expenses incurred in the preparing for the marriage. This effectively excluded any damages for breach of the promise to marry.

Thus in layman terms: if one party breached the promise to marry, the aggrieved can institute a claim for damages, provided that the losses were within the contemplation of the parties. The aggrieved can claim expenses incurred in anticipation of the wedding, thus placing him/her in the financial position he/she would have been had the engagement never been entered into, for example, claiming back the engagement ring.

By
Avela Makunga
avela@dyason.co.za