In a civil marriage, the engagement, also referred to as a “promise to marry” can be seen as an agreement between two parties to marry each other on a determinable or specific date.
Most civil marriages are preceded by an engagement, however a valid engagement is not a prerequisite for the conclusion of a valid civil marriage between the parties.
There are a number of requirements for the conclusion of a valid engagement.
The first one is that the engagement must be based on consensus between the parties.
The second important requirement is that the engagement must be concluded by means of offer and acceptance. Unlike a marriage, the parties do not have to be in each other’s presence, and as long as the parties gave their consent an engagement can be concluded by a representative.
The third requirement for a valid engagement is that both parties must have the necessary capacity to act. A person who suffers from a mental illness cannot become engaged, as such person does not have the capacity to act, and will such a person not be able to become engagement for as long as the incapacity lasts. Neither can a child of young age, as they are not beholden the capacity to act towards an engagement in the eyes of the law.
A fourth and very important requirement for a valid engagement is that the parties must be in a position to conclude a civil marriage with each other at the time of entering into the engagement. In other words, this means that the parties must both be unmarried, the parties may not be related to each other within the prohibited degrees of relationship, the parties may also not be below the age of puberty.
When the parties marry each other, the engagement automatically comes to an end. The engagement also comes to an end or is terminated by mutual agreement between the parties or upon the death of either one of the parties. It can further be seen as lawful or unlawful if a party to the engagement decides to unilaterally terminate the engagement. It is seen as lawful if the termination of the engagement takes place for a just causa. A just causa can be described as a “sound reason”. If the engagement is terminated for a sound reason it does not constitute a breach of promise. On the other hand, breach of promise is when one of the parties without a sound reason terminates the engagement. Adultery or other demonstrable misconduct by one of the parties are examples of what could [Potentially] constitute breach of promise.
The following factors may be seen as a sound reason to end or terminate the engagement between the parties:
- One of the parties becoming sterile or impotent;
- One of the parties developing a serious hereditary disease;
- One of the parties becoming mentally ill;
- One of the parties becoming an alcoholic; and
- When the parties are unable to decide on the matrimonial property system which is to be applicable to their marriage, thus leading to serious arguments.
In the case of Krull v Sangerhaus the court held that when it comes to the wedding arrangements, it is not a sound reason to terminate the engagement if a strong disagreement takes place between the parties’ parents.
One of the important consequences of the termination of the engagement is the return of the engagement gifts. If the engagement is either terminated by mutual agreement or by sound reason, the gifts that include the engagement ring, gifts presented to the other party to show the seriousness of the promise, as well as all gifts made with the view to marriage, must be returned by both parties. Small gifts do not have to be returned which hold no specific meaning, nor can one claim for gifts of smaller value and less sentimentality such as the return of flowers bought during the engagement period.
Each engagement has its own specific manners, views and attributes, all of which could differ in great or in small ways from the next engagement. It remains important to know your rights in relation to such aspects and to consider them with care.
