Chapter 2: Marriage

• Date: 14 April 2025

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 

Marriage

A. ENGAGEMENTS

Engagements are a common prelude to marriage. At the time when the parties agree to marry

at some future date, they often exchange gifts as a token of their commitment. e most

common gift, of course, is the engagement ring that is traditionally given by the prospective

bridegroom to his prospective bride. Not every engagement , however, results in marriage.

e parties may mutually agree to abandon their plans to marry. Or, either of them may

unilaterally break o the engagement. At one time, it was possible for the jilted lover to sue

the other party for breach of promise of marriage. ese actions have now been abolished

in Australia, England, New Zealand, Scotland, and in several American st ates and Canadian

provinces, including British Columbia, Manitoba, and Ontario.1 Most people would ag ree

that it is better for an engagement to be broken than for a marriage to be entered into after

the parties have second thoughts.

B. PROPERTY DISPUTES ON TERMINATION OF ENGAGEMENT

Statutory abolition of actions for breach of promise of marriage does not interfere with the

remedies legally available to resolve property or other disputes that arise on the termination of

an engagement. For example, an engaged couple may have acquired property for their future

married life together, either from their individual or joint eorts. In these circumstances, if

the engagement is subsequently broken o, either party may invoke established legal doctrines

to determine their interest in the property. If it was a product of their joint nancial contri-

butions, whether direct or indirect, the value of the property will be shared b etween them. If

it was acquired solely through the eorts of one of the parties, that person will be exclusively

entitled to the property. e reason for terminating the engagement would be irrelevant to any

 See Patel v Patel,  ABQB ; Dupuis v Austin (),  DLR (th)  (NBQB) (action negated

by s  of the Canadian Charter of Rights and Freedoms).

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Marriage 13

such claims. Dierent principles apply to gifts made in contemplation of marriage, including

the engagement ring. In the absence of express statutory provision to the contrary, the gen-

eral common law rule is that the engagement ring is forfeited by the party who refused to

honour the engagement.2 If the woman breaks o the engagement, she must return the ring.

On the other hand, if the man breaks o the engagement, he cannot demand the return of

the engagement ring. In Ontario, the action for breach of promise of marriage was abolished

in 1977, but section 33 of the Ontario Marriage Act3 expressly provides for the recovery of

gifts made in contemplation of marriage. Pursuant to this statutory provision, where one

person gives a gift to another “in contemplation of or conditional upon” their marriage to

each other and the marriage fails to take place or is abandoned, the question of whether the

failure or abandonment was caused by the fault of the donor is irrelevant to a determination

of the right of the donor to recover the gift. Whether a gift has been made in contemplation

of or conditional upon marriage is a question of fact to be determined in light of the attend-

ant circumstances.4 Birthday presents, for example, would not be regarded as conditional

gifts. On the other hand, an engagement ring could properly be regarded as a pledge made

in contemplation of marriage and should, therefore, be returned under the Ontario statutory

provision if the intended marriage did not take place.5

Gifts received from third parties in contemplation of marriage, such as wedding presents,

are returnable to the donors if the marriage fails to take place for any reason.6

C. CHANGE OF NAME

It has been traditional for the bride to take the surname of the bridegroom after their mar-

riage. is tradition is based on convention and is not a legal requirement. In the absence of

any statutory provision to the contrary, any person may assume the surname of his or her

choice, provided that its use is not calculated to deceive or inict pecuniary loss. A bride

is, therefore, free to retain her birth name in preference to adopting her husband’s surname,

or they may agree on some hybrid form of their joint names. When persons marry and give

birth to children, however, statutory restrictions are often imposed to restrict their ability to

change their surnames at will. In Canada, such legislation is found in provincial and territor-

ial change of name acts. ese statutes sometimes require applications for a change of family

surname to be made through the courts. e current trend of legislation, as exemplied by

 Seiler v Funk (),  OLR  (SC (AD)); Jacobs v Davis, []  KB ; McArthur v Zaduk (),

 RFL (th)  (Ont Sup Ct); Konopka v O’Meara,  ONSC ; Cohen v Sellar, []  KB ;

Robinson v Cumming (),  ER ; see also Zimmerman v Lazare,  BCSC .

 RSO , c M.; see al so Family Law Act, SA , c F-., s ; Equality of Status Act, CCSM, c E, s .

 See King v Mann,  ONSC , discussed in Franks & Z alev, “is Week in Family Law,”  March

 (omson Reuters); and see Hood v Skauge,  ABQB ; see also PS v HR,  BCSC ;

Bath v Bath,  NLCA .

 See Mastromatteo v Dayball, [] OJ No  (Sup Ct); Newell v Allen,  ONSC . But see

contra: Marcon v Cicchelli (),  RFL (d)  (Ont Gen Div); for criticism of this conclusion, see

JG McLeod, “Marcon v Cicchelli,” Case Comment ()  RFL (d)  at .

 Jereys v Luck (),  LTJ .

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