Marriage

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



 

Marriage

A. ENGAGEMENTS

Engagements are a common prelude to marriage. 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 engage-

ment ring that is traditionally given by the prospective bridegroom to his

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

parties may mutually agree to abandon their plans to marry. 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 party for breach of promise of marriage.

ese actions have now been abolished in Australia, England, New Zealand,

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 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,

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

Chapter : Marriage 

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 the woman breaks o the engagement, she must retu rn 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 circumsta nces. Birthday presents, for example, would not be regarded a s

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.

C. CHANGE OF NA ME

It has been traditiona l for the bride to take the surname of the bridegroom

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 .