Breach Of Matrimonial Promise To Marry In South Africa Explained

Written by DIONNE JACKSON
18 NOVEMBER 2022.

Nowadays, getting engaged to be married is often overlooked as a minor commitment, when in fact, getting engaged means that you are entering into a legally binding contract between two mutually consenting parties on their lifelong commitment to eventually marry one another. Consequently, breaking off an engagement has legal repercussions as it is considered a breach of promise. This article will dissect what a breach of promise is, what recourses one has, as well as its defences.

What Is Breach Of Promise to Marry?

In the event that an engagement to marry has not been fulfilled, the party who failed to fulfil their promise to marry the other party has committed a contractual breach of their promise. A claim based on the contractual breach of promise is the legal recourse available to the party at the receiving end of the breach of promise to marry (the plaintiff). This may result in the offending party (the defendant) being held liable for breaking their promise in terms of contractual liability, as their engagement to marry was considered a legally binding contract.

When Does Someone Become Liable For Breach Of Promise to Marry?

It is worth noting that a promise to marry or the marriage itself must be fulfilled within an agreed-upon stipulated time frame or, where no time has been stipulated, within a reasonable period. A party becomes liable for Breach of Promise when that party:

• does not fulfil their promise within the stipulated time;
• blatantly refuses to honour the promise;
• marries another party before the fulfilment of the promise.
• does not fulfil their promise once the conditions set on the promise, if any, have been fulfilled.

Who Can Claim for Breach of Promise to Marry?

Even though it used to be more common for women to claim for breach of matrimonial promise, the legal system has seen an increasing number of men making these claims over the past few years. It is important to note that a court will only entertain a claim for breach of promise from persons who:

• are over the age of 18;
• are mentally and physically fit; and
• believe that they have entered into a valid engagement agreement and, therefore, have legal standing in terms of breach of promise.

What Does One Need to Prove to Claim Breach of Promise?

Over and above proving the aforementioned requirements, the party bringing the action for breach of promise must prove:

• that there is indeed a valid contract between the two parties in existence that could be regarded as a promise to marry;
• that a written, verbal, tacit, or personally acted upon contract was entered into by both parties;
• that the other party refuses to proceed with the marriage; and
• wrongfulness, whether it be the refusal or non-fulfilment of the promise by the other party.

What Cause Of Action / Recourse Is Available To The Disgruntled Party?

Even though the party being sued for breach of promise cannot be forced to uphold the promise to marry, the disgruntled party has other avenues that allow recourse. The courts, however, have made it clear that the plaintiff must make a precise distinction between the cause of action chosen. One can give rise to two causes of action based on:

• delictual grounds (inuria); or
• breach of contract.

• Delictual Grounds:

To succeed with a delictual claim, the plaintiff must prove that the conduct of the defendant was wrongful, injurious, or contumelious. Although delict needs to be proven to have intent, it does not need to be particularised. The amount of damages awarded to the plaintiff is based solely on the nature and degree of the contumacy.

• Contractual Grounds:

In respect of contractual claims, the plaintiff may only succeed if they prove that the loss/damages flow directly from the breach or that the damages only fell into consideration when the contract of promise was entered into. Unilateral repudiation (rejection/denial of proposal) is regarded as prima facie (based on first impression) evidence of the wrongfulness of the breach of promise.

Contractual damages usually consist of the financial loss of the benefits that the disgruntled party may have gained from the proposed marriage, as well as the actual monetary loss that reasonably occurred in the expectance of the marriage, such as wedding rings, wedding costs, etc.

What Damages May be Awarded to the Plaintiff?

Damages in an action for breach of promise are not measured or fixed by a specific standard and are entirely determined by the courts that enjoy jurisdiction over the matter. The following damages could be awarded to a plaintiff:

• Exemplary damages: The conduct of either party may aggravate or alleviate the exemplary damages awarded by the court.
• The engagement ring: It is implied that where a party falls in breach of the promise and breaks off the engagement, the engagement ring may be claimed by the other party.
• Donations made in expectation of marriage: Should the marriage be cancelled, the defendant must return any donations made by the plaintiff in expectation of the marriage and may not reclaim donations made to the plaintiff.
• Gifts from third parties: Gifts given to the parties by a third party in the expectation of the marriage may be retrievable by such party.

What Defences Are Available to the Defendant for Breach of Matrimonial Promise?

The following defences can be proven to emancipate the defendant:

• Invalidity of the contract: If the defendant is already married at the time of the promise, the contract will be declared void as it is viewed as contra bonos mores (against good morals). If the plaintiff was unaware of such an existing marriage, their ignorance needs to be pleaded for an action for damages to succeed;
• False representation or fraudulent concealment by the plaintiff;
• Concealment of monetary circumstances of the plaintiff;
• Concealment of a previous life;
• Bad character or intolerable character flaws that the defendant was not aware of before the promise;
• Physical or mental incapacity;
• Previous confinement in a mental institution that supervened insanity;
• The plaintiff is unfit to marry: Should the plaintiff be declared as fit by the court, this defence may fail;
• The plaintiff has released or discharged the defendant from performance either implicitly or expressly;
• Justa causa (just cause), the defendant in any way had just cause to breach the promise;

Even though a breach of promise claim is not necessarily a traditional legal claim, the legality thereof still stands in South African courts and many disgruntled parties have paved the way for aggrieved fiancés and fiancées to claim their due.

If you were engaged and feel forsaken by a fiancé or fiancée, contact one of Burger Huyser Attorneys’ family lawyers or contractual law attorneys to see how we can assist you!

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE