Requirements for an engagement
Capacity
To enter into an engagement, one must be 18 years of age or older. Minors need the consent of both parents (or guardians), unless certain circumstances are in place or a court order is granted. Mentally ill persons cannot get engaged.
Consent
Both parties must voluntarily, of their own free will, consent to the engagement. However, the following conditions can render a consensual engagement voidable.
Mistake
A material mistake as to the identity of the person you are getting engaged to will render the engagement void.
For example, you are friends on Facebook with a world renowned movie star. He/she sends you a message via Facebook and asks you to get engaged. You are over the moon and accept the offer, only to find out later that it was a fake profile.
Misrepresentation
Misrepresentation occurs when, had the innocent party known the truth, he/she would not have become engaged to the other party. If the misrepresentation seriously endangers the likelihood of having a happy and harmonious marriage, the engagement will be regarded as void. It does not matter whether the misrepresentation was made innocently or fraudulently.
Misrepresentations that can render an engagement void include failing to reveal or concealing certain personal qualities, such as impotence, sterility, serious mental illness, and alcohol or drug addiction, where there is a duty to do so.
Misrepresentation is not only committed by positive false representation, but also by failure to correct an existing misconception. An engagement may also be annulled on the grounds of innocent misrepresentation; for example where a man is coaxed into proposing to his girlfriend in the belief that she is pregnant.
Duress and undue influence
Undue influence is also grounds for terminating an engagement.
Lawfulness
Getting engaged to someone while married to someone else renders the engagement void, as it is against good morals. The unaware party may bring an action against the guilty party.
Termination
Terminating an engagement constitutes a breach of promise. Public policy considerations encourage our courts to recognise it as such and to act accordingly. The Supreme Court of Appeal has given some guidance to courts faced with claims resulting from a termination of engagement.
Breach of promise
A breach of promise may give rise to either of two distinct courses of action:
- The ‘innocent’ party may be entitled to sentimental damages if the repudiation was extremely rude and arrogant. This requires that the ‘guilty’ party, in putting an end to the engagement, acted purposely wrongfully (a delictual action). It does not matter whether the termination of the engagement was justified; what matters is the manner in which the engagement is brought to an end. The fact that the feelings of the innocent party were hurt or that he/she felt insulted or abandoned is not enough for a successful claim for delictual damages.
- An engagement may be cancelled without financial consequences if there is a just cause for the cancellation. Just cause is usually defined as any event, condition or action of one party that jeopardises the chances of a long and happy marriage, and which would induce any right-minded member of society to withdraw from the engagement. Just cause can range from unfaithfulness to an unwillingness or lack of desire to marry.
When people promise to marry each other, they do not contemplate that a breach of their engagement will have financial consequences similar to those of a divorce. When terminating an engagement, one has to distinguish between claims for prospective losses and those for actual losses.
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Author – Kate Bailey – Hill
