Marriage

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 14-34

14

Chapter 2

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 Can adian provinces, including

British Columbia, Ma nitoba, and Ontario.1 Most people would agree t hat 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 marriage does not inter-

fere with the remedies lega lly 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 individual or joint eorts. In these circumstances, if the

1 See Patel v Patel, 2016 ABQB 64; Dupu is v Austin (1998), 168 DLR (4th) 215 (N BQB) (action

negated by s 15 of the Canadi an Charter of Rights and Freed oms).

Chapter 2: Marriage 15

engagement is subsequently broken o, either party may invoke established

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

of their joint nancial contributions, whether direct or indirect, the value of

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

the eorts of one of the part ies, that person will be ex clusively entitled to the

property. e reason for terminating the engagement would be irrelevant to

any such clai ms. Dierent principles apply to gifts made i n contemplation of

marria ge, including the engagement ring. In the absence of e xpress statutory

provision to the contrary, the general common law rule is that the engage-

ment ring is forfeited by the par ty who refused to honour the engagement.2 If

the woman breaks o t he engagement, she must return the ring. O n the other

hand, if the ma n breaks o the engagement, he cannot demand the retu rn of

the engagement ring. In Onta rio, the action for breach of promise of marr iage

was abolished in 1977 but section 33 of the Ontario Marriage Act3 expressly

provides for the recovery of gifts made in contemplation of marriage. Pur-

suant to this statutory provision, where one person makes a gift to another

“in contemplation of or conditional upon” their marriage to each other and

the marri age fails to take place or is abandoned, t he question of whether the

failure or abandonment was c aused by the fault of the donor is irrelevant 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 m arriage is a question of

fact to be determined in light of the attendant circumstances.4 Birthday pre-

sents, for example, would not be regarded as conditional gifts. On the other

hand, an engagement ri ng could properly be regarded as a pledge made in con-

templation of marr iage and should, therefore, be returned under the O ntario

statutory provision i f the intended marriage did not take pl ace.5

Gifts received from third parties in contemplation of marriage, such as

wedding presents, are returnable to the donors if the marriage fails to ta ke

place for any reason.6

2 Seiler v Funk (1914), 32 OLR 9 9 (SC (AD)); Jacobs v Davis, [1917] 2 KB 532; Mc Arthur v

Zaduk (2001), 21 RFL ( 5th) 142 (Ont Sup Ct); Konopk a v O’Meara,2011 ONSC 3 229; Cohen

v Sellar, [1926] 1 KB 536; Robinson v Cumming (1742), 26 ER 646; see a lso Zimmerman v

Lazare, 20 07 BCSC 626.

3 RSO 1990, c M.3; see a lso s 102 of the Family Law Act, SA 2003, c F-4.5.

4 See King v Mann, 202 0 ONSC 108, discusse d in Zalev & Frank s, “is Week in Fami ly

Law” (23 Marc h 2020), omson Reuters; and see Hood v Skauge, 2015 ABQB 47 6; see also

PS v HR, 2016 BCSC 20 71; Bath v Bath, 2002 NLCA 21 .

5 See Mastromatteo v Dayball,[2011] OJ No 1600 (Sup Ct); Newell v Alle n, 2012 ONSC 6681.

But see contra: Marcon v Cicchelli (199 3), 47 RFL (3d) 403 (Ont Gen D iv); for criticism of

this conclu sion, see JG McLeod, “Marcon v C icchelli,” Case Comment (1993) 47 R FL (3d)

411 at 412.

6 Jereys v Luck (192 2), 153 LTJ 139.