Marriage

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 13-36

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Marriage

A. ENGAGEMENTS

Engagements are a common prelude to mar riage. At the ti me when the

parties agre e to marry at some fut ure date, they often e xchange gif ts as a

token of their commitme nt. e most common gift, of cou rse, is the engage-

ment ring that is t raditionally g iven by the prospective br idegroom to his

prospective bride. Not ever y engagement, however, results in marri age. e

parties may mutua lly agree to abandon t heir plans to mar ry. Or either of

them may unil aterally break o the engagement. At one t ime, it was possible

for the jilted lover to sue the other pa rty for breach of promise of m arriage.

ese actions have now been abolished in Australia, England, New Zea land,

Scotland, and in sever al American states and Canad ian provinces, including

British Columbia, Ma nitoba, and Ontario. Most people would agree th at it is

better for an engagement to be broken than for a marriage to be entered into

after the part ies have second thoughts.

B. PROPERTY DISPUTES ON TERMINATION OF

ENGAGEMENT

Statutory abolition of ac tions for breach of promise of mar riage does not inter-

fere with the remedies lega lly available to resolve property or other d isputes

that arise on t he termination of an e ngagement. For example, an engage d

couple may have acquired propert y for their future ma rried life toget her,

either from their ind ividual or joint eorts. I n these circumsta nces, if the

engagement is subsequently broken o, either pa rty may invoke establ ished

legal doctri nes to determine their interest in the property. If it was a product

of their joint nanc ial contributions, whether direct or ind irect, the value of

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the property will be shared bet ween them. If it was acquired solely through

the eor ts of one of the parties, t hat person w ill be exc lusively ent itled to the

property. e reason for termi nating the engagement would b e irrelevant to

any such cla ims. Dierent principles apply to gifts m ade in contemplation of

marri age, including the engagement ring. In t he absence of express statutory

provision to the contrar y, the general common-law rule i s that the engage-

ment ring is forfeited by t he party who refused to honour the engageme nt. If

the woman break s o the engagement, she must return the r ing. On the other

hand, if the ma n breaks o the engagement, he cannot dema nd the return of

the engagement ring. In Ontario, the action for breach of prom ise of marriage

was abolished in  but sec tion  of the Ontario Marr iage Act expressly

provides for the recovery of g ifts made in contemplat ion of marriage. P ur-

suant to this statutor y provision, where one person makes a g ift to another

“in contemplation of or condit ional upon” their mar riage to each other a nd

the marr iage fails to take place or is abandoned , the question of whether the

failure or abandonment wa s caused by the fault of the donor is irrelev ant to a

determination of the r ight of the donor to recover the gift. Whet her a gift has

been made in contemplation of or conditional upon marriage is a question of

fact to be determined i n light of the attendant circu mstances. Birthd ay pre-

sents, for example, would not be rega rded as conditional gi fts. On the other

hand, an engageme nt ring cou ld properly be r egarded as a pledge made i n con-

templation of marr iage and should, therefore, be returned u nder the Ontario

statutory provi sion if the intended marriage d id not take place.

Gifts received from t hird parties in contemplation of marri age, such as

wedding presents, are retu rnable to the donors if the mar riage fail s to take

place for any reason.

C. CHANGE OF NAME

It has been traditional for the bride to take the surname of the bridegroom

after their ma rriage. is tradition is based on convent ion and is not a legal

Seiler v Funk (),  OLR   (SC (AD)); Jacobs v Davis, []  KB ; McA rthur v

Zaduk (),  RFL (t h)  (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 Mastromatteo v Da yball,  OJ No  (Sup Ct); Newell v A llen,  ONSC .

But see contra:Marcon v Cicchelli (),  R FL (d)  (Ont Ct J (Gen Div)); for criti-

cism of this co nclusion, see JG McLeod , “Marcon v Cicchelli,” Case Comment () 

RFL (d)   at .

Jereys v Luck ( ),  LTJ .