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 marry at some future date, they often exchange gifts 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 his prospective

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

mutually agree to abandon their plans to marry. 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 American states and Canadian provinces, including 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 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 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 doctrines 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 acquired solely

through the eorts of one of the parties, that person will be exclusively en-

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 ring. In the absence of

express statutory 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 hand, if the man breaks o the engagement, he cannot

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

of promise of marriage was abolished in  but section  of the Ontario

Marriage Act expressly provides for the recovery of gifts 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 failure 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. 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. Birthday presents, for exa mple, would not be regarded as

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

regarded as a pledge made in contemplation of marriage and should, there-

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

riage did not tak e place.

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.

 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 .