Will you marry me?

Becoming engaged is not a legal necessity but if the offer of marriage is extended and accepted, certain legal consequences may follow. There are no formalities required for the conclusion of a valid engagement.

The parties may conclude the engagement contract in writing, orally or even tacitly. An engagement is a contract and as such, is governed by the law relating to contracts.

Of course, an engagement is different from all other contracts in respect to who may become engaged, how an engagement is cancelled and what damages would flow, if any, from such cancellation.

THE LEGAL REQUIREMENTS OF ENGAGEMENTS

There are specific legal requirements which apply to engagements. These are that:

(a) the parties must agree to the engagement;

(b) the parties must have capacity to act and

(c) the parties must be permitted by law to marry each other.

(d) the engagement must be lawful.

The parties must agree to the engagement

The engagement is invalid if it was as a result of coercion or force. It must be freely and voluntarily agreed to.

The parties must have capacity to act

The parties to the engagement understand the nature and consequence of his or her actions; if they are unable to have such an appreciation, they cannot enter into a valid engagement contract. An example of this is intoxication.

Who may enter into an engagement?

Not every person who may enter into a contract has the capacity to enter into a contract of engagement. The law provides as follows:

(a) Persons who have full capacity to act (majors) may enter into an engagement contract

(b) Minors require the consent of their parents or guardians to conclude a binding contract of engagement. Minors who have been emancipated do not require this consent

The engagement must be lawful.

The element of lawfulness requires that both parties to the engagement must be allowed in law to marry each other. For instance, persons who are related to each other within certain degrees of a blood relationship may not marry.

THE TERMINATION OF AN ENGAGEMENT

A contract of engagement comes to an end in the same way as other contracts. An engagement contract may be terminated by:

(a) marriage (This means the contract has been fulfilled)

(b) mutual agreement to terminate the engagement

(c) the death of either of either or both of the engaged persons

(d) withdrawal of parental consent where one of the parties is a minor

(e) any unilateral and justified termination of the contract which is based on sound reason.

Breach of contract

If one of the parties to the engagement fails without good cause to proceed with the marriage, that person has breached the contract. Consequently, where an engagement is broken by one party without good reason, the other party can take legal action and claim damages on the ground of breach of contract.

Damages for breach of contract

The aggrieved party may withdraw from the engagement and seek damages for breach of contract. The damages arise from the unlawful termination of the engagement. The damages claimed are for actual financial loss suffered by the aggrieved party.

The aggrieved party may also claim compensation for injured feelings. These damages do not relate to the diminishing of one’s estate. It is a loss which affects your person or your personality.

It is important, when becoming engaged to understand the consequences of such an action, or in the event of the termination of the engagement. Should you require further assistance, it is suggested that an attorney practicing in Family Law be consulted.

About the authorAndrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za