BREAKING OFF AN ENGAGEMENT - CAN YOU take LEGAL action?

Engagements are a happy and celebratory time where two people state their intention and commitment to marry one another. But did you know that this solemn declaration can have legal implications? 

Previously, if one of the parties decided to call-off the engagement, this was seen as a breach of promise and carried the potential claim for litigation. A breach of promise was based on the common law, which in its simplest definition is a “body of law” based on court decisions rather than codes or statutes. 

The common law however has evolved with the changing mores and norms of society. In the past if a person broke-off an engagement, she (the aggrieved person was almost always female) would have been entitled to claim for breach of promise based on delict and contract. The delictual claim would be for the damages suffered, (contumelia or sentimental damages claim which loosely can be described as the indignity or hurt endured due to the breakup of the engagement) and the contractual claim was for the actual financial loss suffered in preparation towards the wedding and expenses incurred.

In the matter of Van Jaarsveld v Bridges[1] we saw a significant shift in how our courts now view these breach of promise actions, when the Supreme Court of Appeal dismissed the woman’s claim for sentimental damages and said that the time has come for our common law to be developed to take into account the changing values of our society. Justice Harms J stated in the matter: “I do believe the time has arrived to recognise that engagements are outdated and do not recognize the mores of our time, and that public policy considerations require that our courts must reassess the law relating to breach of promise”.  

Nowadays, the courts no longer take into account any delictual claim in terms of sentimental feelings however, a claim for actual financial loss may still be awarded to the aggrieved party. This was confirmed in the case of Cloete v Maritz[2], where a women sued her ex-fiancé for breach of promise. The court confirmed the decision in Van Jaarsveld v Bridges and stated that though there would be a valid claim for actual expenses incurred due to the preparation for a wedding there was no delictual claim in terms of sentimental damages.

So the next time you plan on going down on one knee or excitingly accept a marriage proposal, you might want to ask yourself whether this decision might end you up in court.

[1] (344/09) [2010] ZASCA 76; 2010 (4) SA 558 (SCA) ; [2010] 4 All SA 389 (SCA)

[2] (6222/2010) [2013] ZAWCHC 69; 2013 (5) SA 448 (WCC)