Marriage

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 14-38

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 

Marriage

A. ENGAGEMENTS

Engagements are a common prelude to marr iage. At the time when the parties

agree to marr y at some future date, they often e xchange gift s as a token of

their commitment. e most common gi ft, of course, is the engagement ring

that is traditiona lly given by the prospective bridegroom to h is prospective

bride. Not every engagement, however, results in marriage. e pa rties may

mutually ag ree to abandon their plans to ma rry. Or either of them may uni-

laterally break o t he engagement. At one time, it was possible for the jilted

lover to sue the other part y for breach of promise of marriage. ese actions

have now been abolished in Aust ralia, England, New Zea land, Scotland, and

in several Amer ican states and Canad ian provinces, includ ing British Col-

umbia, Manitoba, a nd Ontario. Most people would agree that it is better for

an engagement to be broken than for a ma rriage to be entered into after the

parties have second thoughts.

B. PROPERTY DISPUTES ON TERMINATION OF

ENGAGEMENT

Statutory abolition of act ions for breach of promise of marri age does not

interfere with the remed ies legally avail able to resolve property or other

disputes that ar ise on the termination of a n engagement. For example, an

engaged couple may have acquired proper ty for their future ma rried life

together, either from their indiv idual or joint eorts. In these circ umstances,

 See Patel v Pate l,  ABQB ; Dupu is v Austin (),  DLR (th)  (NB QB) (ac-

tion negated by s  of the Ca nadian Charter of Right s and Freedoms).

Chapter : Marriage 

if the engagement is subsequently broken o, e ither party may invoke estab-

lished legal doct rines to determine thei r interest in the property. If it was a

product of their joint nanc ial contributions, whether direct or ind irect, the

value of the property w ill be shared between them. If it was acqu ired solely

through the eorts of one of the parties, that person w ill be exclusively e n-

titled to the propert y. e reason for terminati ng the engagement would be

irrelevant to any suc h claims. Dierent principles apply to g ifts made in con-

templation of marriage, including the engagement r ing. In the absence of

express statutor y provision to the contrary, the general common l aw rule is

that the engagement rin g is forfeited by the party who refus ed to honour the

engagement. If t he woman break s o the engagement, she must return the

ring. On the other ha nd, if the man breaks o t he engagement, he cannot

demand the retur n of the engagement ring. In Ontario, the act ion for breach

of promise of marr iage was abolished in  but sec tion  of the Ontario

Marriage Act ex pressly provides for the recovery of gif ts made in contem-

plation of marriage. Pursuant to this st atutory provision, where one person

makes a gif t to another “in contemplation of or conditional upon” their ma r-

riage to each other a nd the marriage fails to t ake place or is abandoned, the

question of whether the fai lure or abandonment was caused by the fault of

the donor is irreleva nt to a determination of the right of the donor to recover

the gift. W hether a gift ha s been made in contemplation of or conditional

upon marri age is a question of fact to be determined i n light of the attend-

ant circumstances. Birthday presents, for exa mple, would not be regarded as

conditional gif ts. On the other hand, an engagement ring could prope rly be

regarded as a pledge made in contemplation of ma rriage and should, t here-

fore, be returned under the Ont ario statutory provision if the intended ma r-

riage did not tak e place.

Gifts received from th ird parties in contemplation of mar riage, such as

wedding presents, are retu rnable to the donors if the mar riage fails to t ake

place for any reason.

 Seiler v Funk (),  OLR   (SC (AD)); Jacobs v Davis, []  KB ; Mc Arthur v

Zaduk (),  RFL ( th)  (Ont Sup Ct); Konopka v O’Meara,  ONS C ; Cohen

v Sellar, []  KB ; Robinson v Cumming (),  ER ; see a lso Zimmerman v

Lazare,   BCSC .

 RSO , c M.; see a lso s  of the Family Law Ac t, SA , c F-..

 See Hood v Skauge,  ABQB ; see als o PS v HR,  BCSC ; Bath v Bath,  

NLCA .

 See Mastromatteo v Dayb all, [] OJ No  (Sup Ct); Newell v Allen,  ONSC  .

But see contra: Marcon v C icchelli (),  RFL (d )  (Ont Gen Div); for critici sm of

this conclu sion, see JG McLeod, “Marco n v Cicchelli,” Case Comment ()  R FL (d)

 at .

 Jereys v Luck (),  LTJ .