Getting Disengaged – Breach of Promise
Whenever a leap year approaches, many ladies may be planning to
ask ‘for their boyfriend’s hand in marriage’ on the 29th
of February. What they may not realise, however, is that until
relatively recently if a young lady (or gentleman) asked her
beau (or lady love) for their ‘hand in marriage’ and the other
party accepted, then they had entered into what was in essence a
legal contract, with all the usual consequences should it be
broken.
You would have thought that such ‘Breach of Promise’ actions
disappeared with the crinoline and Queen Victoria, the fact is
they didn’t. In the late 19th century, several Bills were
introduced in the House of Commons, seeking to abolish the
action for breach of promise, but none of them became law.
In fact the whole subject of Breach of Promise was not examined
again until the Law Commission, published its Report, entitled
Breach of Promise of Marriage, in 1969.
The Commission considered that the law gave opportunity for
claims of “gold-digging”. (This is the reason why legal aid was
never made available for such actions.) The Commission also
referred to the argument that … “the stability of marriages is
so important to society that the law should not countenance
rights of action the threat of which may push people into
marriages which they would not otherwise undertake”.
The Commission, whilst conceding that this threat might not be a
major factor in practice, stated: “If, as we believe, it is
important that parties should be free to terminate an
engagement, then it can hardly be thought desirable to retain
the contractual effects of an agreement to marry”.
The result of the Commission was a recommendation to abolish the
action for breach of promise, replacing it by a procedure for
settling property disputes between the parties.
The Commission stated:
“The special relationship between engaged couples may lead them
to enter into informal transactions concerning the acquisition
or improvement of property, whether owned or purchased by one
party or by both, and whether intended for their common use or
otherwise. Such transactions will often be very similar in
nature to those between married persons. There is a strong case
for applying the same principles of law to disputes between
ex-fiancés as those which apply to disputes between husband and
wife”.
The Commission accordingly recommended that the procedure under
section 17 of the Married Women's Property Act 1882*
for resolving property disputes between spouses should be
extended to engaged couples.
The Commission referred to the case where one spouse contributed
money or money's worth to the improvement of the other's
property (or the property of them both) and the contribution was
of a substantial nature, he or she could acquire a beneficial
interest in the property. It considered that this recommendation
– which was implemented by section 37 of the Matrimonial
Proceedings and Property Act 1970– should apply equally to
engaged couples, it now does and is included in section 2 of the
English Law Reform (Miscellaneous Provisions) Act 1970.
It also stated that there must have been a definite agreement to
marry. Once such an agreement existed, however, the conduct of
the parties before the engagement would be relevant.
With regard to gifts – the engagement ring being the most
obvious example – the Commission recommended that the
donor…“should not be prevented from recovering a gift on
termination of the agreement by reason of the fact that he (or
she) was responsible for the termination”.
The Commission made no recommendation with regard to gifts from
third parties on the basis that it was outside the scope of the
Report. It noted that the law in this connection…”is like the
whole field of law concerning ‘unjust enrichment’, far from
clear”.
So if a leap year approaches be careful about making promises.
PS. If a lady asks a gentleman to marry her, who buys the
engagement ring?
David Simon
Family Law Partner
Glaisyers solicitors
Printing House Street, B4 5DZ
Tel: 0121 233 2971
e-mail:
davidsimon@glaisyers.co.uk
