Family Law

Unit 2
CHAPTER TWO
ENGAGEMENT
Key objective

• Students should be able to …

• Define the engagement contract
• Define requirements of engagements
• Describe how the engagement is terminated
• Define the breach of engagement and the consequences
thereof
Picture of an engaged couple

This Photo by Unknown Author is

licensed under CC BY-NC-ND
Definition

• The engagement (or promise to marry) in respect of a civil

marriage is an agreement between a man and a woman to
marry each other on specific or determinable date.
• From the definition, it is clear that the parties must have
reached the agreement
• Engagement are governed by common law
• This is an implied agreement that the parties will not become
intimately involved with other people
• Further they will not conduct themselves in a will threaten the
prospects of a happy future
Nature and form of agreement

• is a contract between a man and woman / (same sex

parties ) to marry each other on a specific or determinable
date
• No date fixed ( within a reasonable time)
• A valid engagement is not a prerequisite for a valid civil
marriage.
• No special requirements are required for the conclusion of
an engagement, which means that the contract can be
concluded orally or in writing
Nature and form of Agreement

• It is an agreement sui generis (ie. unique) since it entails

more than the mere delivery of a performance. This means
that where there is a breach of contract:
• A court cannot order specific performance
• A court can take the feelings of a party into consideration
when calculating damages
• It takes on some of the characteristics of a normal contract
(ie. Offer and acceptance, reciprocal duties and breach)
Requirements of a valid engagement

1. Consent
• Both parties must voluntarily, of their own free will, consent to
the engagement.
• Consensus based on two corresponding declarations of intent
which are aimed at concluding the agreement
• the engagement contract (an offer and acceptance of the
offer)
Mistake renders an agreement contract
void

• However, the following conditions can render a consensual engagement void or voidable
• Void engagement contract is regarded as non-existent and of no force and
effect
• ( IT IS AS IF THERE HAD NEVER BEEN A CONTRACT)
• Mistake

A material mistake as to the identity of the person you are getting engaged to will
render the engagement void.
• For example, you are friends on Facebook with a world renowned movie star. He/she
sends you a message via Facebook and asks you to get engaged. You are over the moon
and accept the offer, only to find out later that it was a fake profile
• Material mistakes renders an engagement contract void
Mistake cont’d

• Error in persona – mistake about the person to whom a party is engaged

• When A thinks he concluded a contract with B, but in reality, it was with C
• Error in negotio- a mistake as to the nature of the agreement
• B thought A was joking and agreed, or B thought they were concluding a civil
marriage, but A thought the agreement was in terms of a Hindu religion marriage
• Error qualitatis
• Situation where party errs regarding the personal qualities of the other party (e.g.
sterility, physical/psychological deficiencies)
• Sometimes seen as material (void) and sometimes seen as misrepresentation
(voidable)
• Voidable engagement contract is a valid contract for all purposes and until the
innocent party obtains a decree of nullity
Misrepresentation …..

• Misrepresentation occurs when, had the innocent party known the truth,
he/she would not have become engaged to the other party
• This occurs where a party to an engagement agreement creates a wrong
impression/ false representation concerning certain aspects of themselves in
the mind of the other party
• Misrepresentation induces the innocent party to conclude the engagement
contract
• 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,
Misrepresentation…..

• 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
• Read Schnaar v Jansen 1924 (45) NLR 218
Duress

• Where party enters into an engagement because of unlawful threats

forcing him/her to do so (duress)
• Renders the engagement contract voidable
• Where party’s influence over another weakens that party’s ability to
resist (undue influence)
Competency or capacity to act

• Usual contractual requirements (for example, one suffers

from mental illness)
• Minors must obtain consent of parents (ratification is
possible)
• Where consent is required from the Minister of Home
Affairs, the engagement is conditional until proper consent
is given ( girls below 15, boys below 18)
Lawfulness

• Getting engaged to someone while married to someone else renders the engagement
void, as it is against good morals (contra bonus mores). The unaware party may bring an
action against the guilty party.
• The engagement remains void even if the person to whom the promise has been made
was unaware of the true status of the party who made the promise
• Pietzch v Thompson 1972 4 SA 122
• Friedman v Harris 1928 CPD 43- a married man undertook to marry a woman if she paid
him an amount of money. He promised to repay the money should the marriage not take
place. After she paid the amount, he refused to marry her or to repay her.
• Jajbhay v Cassim 1939 AD 537
Consequences of engagement

• Reciprocal duty to marry on set or determinable date within

a reasonable time
• No unilateral changes or termination without good reason
• Can be subject to conditions (i.e. an uncertain future event)
• Requires faithfulness
• Not clear what happens if third party interferes with the
engagement
Grounds for lawful termination of an
engagement

1. Marriage
2. Death
3. Mutual agreement
4. Withdrawal of parental consent (minors)
5. Unilateral and justified (lawful) termination- (justa causa)
- A fact or an occurrence which comes about after the
engagement has been concluded which according to human
nature will jeopardize the chances of happy & lasting marriage
- E.g sterile, impotent, committing a serious crime, becoming
mental ill
Grounds for lawful termination of an
engagement

• Where the unilateral termination is unjustified (ie. without

just cause), the termination is unlawful and will constitute a
breach of promise.
• E.g disagreements between parents and parties regarding
wedding arrangements, one party no longer loves the other
party
• Wrongful conduct by one the parties permits the innocent
party to withdraw from the engagement
What is a Breach of Promise

• Breach of Promise occurs if one of the parties terminates

the engagement without a justa cause or violates the
commitments implicitly in the engagement( such as having
a relationship with the third party.
Examples of wrongful conduct leading to one party
withdrawing from the engagement
• The denial of the existence of the engagement
• Unreasonable refusal to enter into the marriage
• The conclusion of an engagement with a third party
• Having an intimate or sexual relationship with a third party
Consequences of a breach of promise

• 1 Delictual damages for personality infringement

• Delictual action on the ground of personality infringement
• If the termination impairs on the dignity of the other party,
the other injured party may institute the action iniurium.
• Under this action the party claims for sentimental damages
or satisfaction for breach of promise
• For the injured party to succeed, the injured party must not
only prove the injury but the intention to injure.
Factors taken into account

Amount of damages – discretion of court based

on inter alia:
• Way in which breach occurred
• Motives behind that course of conduct
• Social status of the parties
• Previous life experiences of the parties.
Contractual damages

• general rule is that damages for patrimonial loss are

calculated on the basis of positive interest.
• This means that the innocent party is entitled to damages
which would place him or her in the position he or she
would have been in had the contract been fulfilled.
• It is awarded to the innocent party both the prospective
loss of the benefit of the marriage or
• The actual loss incurred or to be incurred as a result of the
breach
Examples of factors taken into
consideration when assessing damages

1. Whether the proposed marriage would have been

to the advantage of the plaintiff
2. Plaintiff’s prospects of concluding an
advantageous marriage with someone else
3. Probable duration of the marriage
Cont’d

• In Guggenheim v Rosenbaum 1961 (4) SA 21 (A) at 40, the

court tried to predict whether Ms Guggenheim’s claim for
damages against Mr Rosenbaum should be reduced
because she might find someone else to marry. The plaintiff
was almost 44 years old and carried herself well.
Consequently, the court could not rule out the fact that she
might get married again.
• In Van Jaarveld v Bridges 2010 (4) SA 558 (SCA), the court
held that ‘ the courts should not involve themselves with
speculations on such grand scale by permitting claims for
prospective loss’
Cont’d

• … the court also held that, it was easier to justify a claim

for actual losses, for example, losses related to the
wedding preparations.
• In Guggenheim’s case, the court for example awarded her
damages for expenses incurred in packing and storing her
belongings when she moved from New York to JHB to marry
Mr Rosenbum
Return of engagement gifts

• Return of engagements gift (jocalia)except small gifts which

have been used up, alienated or lost.
• If damages are also claimed the amount claimed may be
set off against the return of gifts
• (appliances, furniture , wedding ring)
• Whether an engagement gift has to be returned depends
on:
• The type of gift
• How engagement was terminated
CASE ANALYSIS THROUGH FIRAC FOR
GROUPS

• Guggenheim v Rosenbaum (2) 1961 (4) SA 21 (W),

• Sepheri v Scanlan 2008 (1) SA 322 (C)
• Cloete v Maritz 2013 (5) SA 448 (WCC)