Marriage

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 18-40

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 

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 ex change gift s as a

token of their com mitment. e most common gift, of course, is the engage-

ment ri ng that is traditiona lly given by the prospective bridegroom to his

prospective br ide. Not every engagement, however, resu lts in marria ge. e

parties may mutua lly agree to abandon their plans to marr y. O r either of

them may unilateral ly break of‌f the engagement. At one time, it was possible

for the ji lted lover to sue the other party for breach of promise of marriage.

ese actions have now been aboli shed in Australi a, England, New Zealand,

Scotland, and i n several American st ates and Canadian provi nces, including

British Columbia, Man itoba, and Ontario. Most people would agree that it is

better for an engagement to be broken than 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 bre ach of promise of marr iage 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 h ave acquired propert y for their future marr ied li fe

together, either from their individual or joint ef‌forts. In these circumst ances,

if the engagement is subsequent ly broken of‌f, either party may invoke estab-

lished legal doctrines to deter mine their interest in the property. If it was a

product of their joint f‌inanci al contributions, whether direct or indire ct, the

Chapter : Marriage 

value of t he property wi ll be shared b etween them. If it was acquired solely

through t he ef‌forts of one of the parties, that person w ill be exc lusively en-

titled to t he property. e reason for termi nating the engagement would be

irrelevant to any such c laims. Dif‌ferent principles apply to gif ts made in con-

templation of marr iage, includ ing the engagement r ing. In the abse nce of

express statutor y provision to the contrar y, the general common-l aw rule is

that the engagement ring is forfeited by the party who refused to honour the

engagement. If the woman brea ks of‌f the engagement, she must ret urn the

ring. On the other hand, i f the ma n breaks o f‌f the engagement, he cannot

demand the return of the engagement ring. In Ontar io, the action for breach

of promise of marriage was abolished in  but section  of the Ontario

Marriage Act expressly prov ides for the recovery of g ifts m ade in contem-

plation of mar riage. Pursuant to th is statutory provision, where one person

makes a gif t to another “in contemplation of or conditional upon” thei r mar-

riage to each other and the marri age fails to take pl ace or is abandoned, the

question of whether the fai lure or abandonment w as caused by the fault of

the donor is irrelevant to a determination of the right of the donor to recover

the g ift. Whet her a gi ft has been made in contemplation of or conditiona l

upon mar riage is a question of fact to be deter mined in li ght of the atte nd-

ant circumsta nces. Birthday presents, for example, would not be regarded as

conditional g ifts. On the other hand, an engagement r ing could properly be

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

fore, be returned under the Ontario statutory provi sion if the intended mar-

riage did not tak e place.

Gifts receive d from third pa rties in contemplation of marriage, suc h as

wedding presents, are returnable to the donors if the m arriage fail s to take

place for any reason.

C. CHANGE OF NAME

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

after their marriage. is t radition is based on convention and i s not a legal

requirement. In the absence of any statutory provision to the contrary, any

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

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

Rep. ; Ro binson v. Cumming (),  E.R. . See a lso Marcon v. Cicchelli (), 

R.F.L. (d )  (Ont. Gen. Div.); for criticis m of this conclusion, se e J.G. McLeod, “Case

Comment: Marcon v. Cicchelli ” (),  R.F.L. (d )  at . Compare Zi mmerman v.

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

 R.S.O. , c. M..

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

 Jef‌freys v. Luck (),  L.T.J. .