Marriage

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 21-44

 

MARRIAGE

A. ENGAGEMENTS

Engagements are a common prelude to marriage. At the time when the

parties agree to mar ry at some future date, they often exchange gifts as a

token of their commitment. e most common gift , of course, is the en-

gagement ring that is tradit ionally g iven by the prospec tive bridegro om

to his prospective bride. Not every engagement, however, results in mar-

riage. e parties may mutually ag ree to abandon their plans to marr y.

Or either of them may unilateral ly break of‌f the engagement. At one time,

it was possible for the jilted lover to sue the other party for breach of

promise of marriage. ese actions have now been abolished in England,

Scotland, Austral ia, New Zealand, and in s everal American states a nd

Canadian provinces, includi ng British Columbia, Manitoba, and Ontario.

Most people would agree that it is better for an engagement to be bro-

ken than for a marriage to be entered into after t he parties have second

thoughts.

B. PROPERTY DISPUTES ON TERM INATION OF

ENGAGEMENT

Statutory abolition of actions for breach of promise of marr iage does not

interfere with the remedies lega lly avai lable to resolve proper ty or other

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22 CANADIAN FAMILY LAW

disputes that arise on the ter mination of an engagement. For example, an

engaged couple may have acqu ired propert y for their future mar ried life

together, either from their individual or joint ef‌forts. In these circum-

stances, if the engagement is subsequently broken of‌f, either part y may

invoke establishe d legal doctrines t o determine their intere st in the prop-

erty. If it was a product of their joint f‌ina ncial contributions, whether

direct or i ndirect, the va lue of the property w ill be shared bet ween them.

If it was acquired solely through t he ef‌forts of one of the parties, that

person wil l be exclusively entitled to t he property. e reason for termin-

ating the engagement would be irrelevant to any such claims. Di f‌ferent

principles apply to gifts made in contemplation of marriage, including

the engagement ri ng. In the absence of express st atutory provi sion to

the contrary, the general common-law rule is that the engagement ring

is forfeited by the party who refus ed to honour the engagement.If the

woman breaks of‌f the engagement, she must return the ri ng. On the other

hand, if the man breaks of‌f the engagement, he can not demand the return

of the engagement ring. In Ontario, the action for breach of promise of

marriage was aboli shed in  but section  of the Ontario Marriage

Act expressly provides for the recovery of gif ts made in contemplation of

marriage. Pursuant to th is statutory provision, where one person makes a

gift to another “ in contemplation of or conditional upon” their marriage

to each other and the marriage fai ls to take place or is abandoned, the

question of whether the failure or abandonment was caused by the fault

of the donor is irrelevant to a determination of the right 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 in light

of the attendant circumsta nces. Birthday presents, for example, would

not be regarded as conditional gif ts. On the other hand, an engagement

ring could prop erly be regarded a s a pledge made in contempl ation of

marriage and should, therefore, be retur ned under the Ontario statutory

provision if the intended marriage d id not take place.

Seiler v. Funk (),  O.L.R.  (S.C.); Jacobs v. Davies, [–] All E.R. Rep. ;

McArthur v. Zaduk (),  R.F.L. (th)  (Ont. Sup. Ct .); Cohen v. Sellar, []

All E.R . Rep. ; Robinson v. Cumming (),  E.R. . See als o Marcon v. Cic-

chelli (),  R.F.L. (d)  (Ont. Gen. Div.); for critici sm of this conclusion, see

J.G. McLeod, “Case Co mment: Marcon v. Cicchelli” (),  R.F.L. (d)  at .

Compare Zimmerman v. Lazare , [] B.C.J. No.  (S.C.).

 R.S.O.,c.M..R.S.O. , c. M..

 But seeBut see contra:Marcon v. Cicchelli (),  R.F.L. (d)  (Ont. Gen. Div.).