AuthorJulien D. Payne,Marilyn A. Payne
Date25 July 2022
Chapter 2
Engagements are a common prelude to marriage. At the time when the par-
ties agree to marry at some future date, they oen exchange gis as a token of
their commitment. e most common gi, of course, is the engagement ring
that is traditionally given by the prospective bridegroom to his prospective
bride. Not every engagement, however, results in marriage. e parties may
mutually agree to abandon their plans to marry. Or, either of them may uni-
laterally 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 Australia, England, New Zealand, Scotland, and
in several American states and Canadian provinces, including British Colum-
bia, Manitoba, and Ontario.1 Most people would agree that it is beer for an
engagement to be broken than for a marriage to be entered into aer the par-
ties have second thoughts.
Statutory abolition of actions for breach of promise of marriage does not inter-
fere with the remedies legally available to resolve property or other disputes
that arise on the termination of an engagement. For example, an engaged
1 See Patel v Patel, 2016 ABQB 64; Dupuis v Austin (1998), 168 DLR (4th) 215 (NBQB)
(action negated by s 15 of the Canadian Charter of Rights and Freedoms).
Chapter 2: Marriage 15
couple may have acquired property for their future married life together,
either from their individual or joint ef‌forts. In these circumstances, if the
engagement is subsequently broken of‌f, either party may invoke established
legal doctrines to determine their interest in the property. If it was a product
of their joint f‌inancial contributions, whether direct or indirect, the value of
the property will be shared between them. If it was acquired solely through
the ef‌forts of one of the parties, that person will be exclusively entitled to the
property. e reason for terminating the engagement would be irrelevant to
any such claims. Dif‌ferent principles apply to gis made in contemplation of
marriage, including the engagement ring. In the absence of express statutory
provision to the contrary, the general common law rule is that the engagement
ring is forfeited by the party who refused to honour the engagement.2 If the
woman breaks of‌f the engagement, she must return the ring. On the other
hand, if the man breaks of‌f the engagement, he cannot demand the return of
the engagement ring. In Ontario, the action for breach of promise of marriage
was abolished in 1977, but section 33 of the Ontario Marriage Act3 expressly
provides for the recovery of gis made in contemplation of marriage. Pursu-
ant to this statutory provision, where one person gives a gi to another “in
contemplation of or conditional upon” their marriage to each other and the
marriage fails 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 gi. Whether a gi
has been made in contemplation of or conditional upon marriage is a ques-
tion of fact to be determined in light of the aendant circumstances.4 Birth-
day presents, for example, would not be regarded as conditional gis. On the
other hand, an engagement ring could properly be regarded as a pledge made
in contemplation of marriage and should, therefore, be returned under the
Ontario statutory provision if the intended marriage did not take place.5
2 Seiler v Funk (1914), 32 OLR 99 (SC (AD)); Jacobs v Davis, [1917] 2 KB 532; McArthur
v Zaduk (2001), 21 RFL (5th) 142 (Ont Sup Ct); Konopka v O’Meara, 2011 ONSC 3229;
Cohen v Sellar, [1926] 1 KB 536; Robinson v Cumming (1742), 26 ER 646; see also Zimmer-
man v Lazare, 2007 BCSC 626.
3 RSO 1990, c M.3; see also Family Law Act, SA 2003, c F-4.5, s 102; Equality of Status Act,
CCSM, c E130, s 5.
4 See King v Mann, 2020 ONSC 108, discussed in Zalev & Franks, “This Week in Family
Law” (23 March 2020), Thomson Reuters; and see Hood v Skauge, 2015 ABQB 476; see
also PS v HR, 2016 BCSC 2071; Bath v Bath, 2002 NLCA 21.
5 See Mastromatteo v Dayball, [2011] OJ No 1600 (Sup Ct); Newell v Allen, 2012 ONSC
6681. But see contra: Marcon v Cicchelli (1993), 47 RFL (3d) 403 (Ont Gen Div); for criti-
cism of this conclusion, see JG McLeod, “Marcon v Cicchelli,” Case Comment (1993) 47
RFL (3d) 411 at 412.

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