Marriage

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 21-44

 

MARRIAGE

A. ENGAGEMENTS

Engagements are a common prelude to marria ge. At the time when the

parties ag ree to marr y at some futu re date, they oft en exchange gi fts as

a token of their commit ment. e most common gi ft, of course, is the

engagement ring th at is traditionally g iven by the prospective bridegro om

to his prospe ctive bride. Not every engagement, however, result s in mar-

riage. e parties may mutually agree to aba ndont heir plans to marry. Or

either of them may un ilateral ly break of‌f the engagement . At one time, it

waspossibleforthejiltedlovertosuetheotherpartyforbreachofpromise

of marriage. ese actions have nowbeen abolished in Engla nd,Scotland,

Australia, New Zealand, and in several American states and Canadian

provinces, includingBritish Columbia, Manitoba,and Ontario. Most peo-

plewouldagreethatitisbetterforanengagementtobebrokenthanfora

marriage to be entered into after the parties have second thoughts.

B. PROPERTY DISPUTES ON TERMINATION OF

ENGAGEMENT

Statutory ab olition of action s for breach of promise of m arriage doe s not

interfere with t he remedies lega lly available to resolve propert y or other



 CANADIAN FAMILY LAW

disputesthat arise on the termination of an engagement.For example,an

engaged couple may have acqui red propert y for their future marrie d life

together, either from thei r individu al or joint ef‌forts. In these circum-

stances, if the engagement is subsequently broken of‌f, either party may

invoke establishe d legal doctrines to det ermine their interest i n the prop-

erty. If it was a product of their jointf‌inancial contributions, whether di-

rect or indi rect, the value of the prop erty will be sh ared between them. If

itwasacquiredsolelythroughtheef‌fortsofoneoftheparties,thatperson

will be exc lusively entit led to the property.

e reason for termin ating the engagement would b e irrelevant to

any such clai ms. Dif‌ferent princ iples apply to gift s made in contemplation

of marriage, including the engagement ring. In the absence of express

statutory provision to the contrary, the general rule is that the engage-

ment ring is forfeit ed by the par ty who refu sed to honour t he engage-

ment. If the woman breaks of‌f the engagement, she must return the ring.

Ontheotherhand,ifthemanbreaksof‌ftheengagement,hecannotde

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mand the ret urn of the engagement ri ng. In Ontario, the ac tion for breach

of promise of marriage was abolished in  but section  of the On-

tario Marriage Actexpressly provides for the recovery of g ift s made in

contemplation of mar riage. Pursuant to th is statutor y provision, w here

onepersonmakesagifttoanother“incontemplationoforconditional

upon” their marriage to each other and the marriage fails to t ake placeor

is abandoned, the question of whether the failure or abandonment was

caused by the f ault of the donor is irrelevant to a det ermination of t he

rightofthedonortorecoverthegift. Whetheragifthasbeenmadein

contemplation of or condit ional upon mar riage is a question of fact to be

determined in light of the attendant circumstances. Birthday presents,

for example, would not be re garded as condit ional gi fts. On t he other

hand, an engagement r ing could properly be regarded as a pled ge made in

contemplation of marri age and should, therefore, be ret urned under t he

Ontariostatutoryprovisioniftheintendedmarriagedidnottakeplace.



Seiler v. Funk (),O.L.R.(S.C.);Jacobs v. Davies,[–] AllE.R.Rep.;

McArthur v. Zad uk (),R.F.L.(th)(Ont.S.C.);Cohen v. Sellar, [] All

E.R. Rep. ; Robinsonv.Cumming(),E.R..SeealsoMarconv.Cicchelli

(),R.F.L.(d)(Ont.Gen. Div.);forcriticismofthisconclusion,seeJ.G.

McLeod, “Cas e Comment: Marconv.Cicchelli” (),  R.F.L. (d)  at  .

 R.S.O. , c. M..

 But see contra:Marconv.Cicchelli, (),  R.F.L. ( d)  (Ont. Gen. Div.).