Marriage

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 14-37

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Marriage

A. ENGAGEMENTS

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

parties agree to m arry at some future d ate, they often excha nge gifts as a

token of their commitment. e most common gi ft, of course, is the engage-

ment ring that is trad itionally given by t he prospective bridegroom to hi s

prospective bride. Not ever y engagement, however, results in marriage. e

parties may mutua lly agree to abandon their pl ans to marr y. Or either of

them may unil aterally break o the engagement. At one time, it was p ossible

for the jilted lover to sue the other par ty for breach of promise of marr iage.

ese actions have now been aboli shed in Australia , England, New Zeal and,

Scotland, and in se veral American states and Ca nadian provinces, including

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

better for an engagement to be broken tha n for a marriage to be entered into

after the par ties 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,

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

Chapter : Marriage 

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

through the eort s 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 the wom an breaks o the engagement, she must retu rn 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 g ifts 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 circumsta nces. Birthday presents, for example, would not be regarded a s

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.

C. CHANGE OF NA ME

It has been traditiona l for the bride to ta ke the surname of the br idegroom

after their ma rriage. is tradition is based on convention a nd is not a legal

 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 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 .