Family Law– LPFA 3532

Unit 2: Engagement
Lecturer: Mrs A. L. Zender

02 August 2021
 Learning Outcomes:
By the end of this lesson, students should be able to:

• explain what an engagement is;

• identify the requirements for the conclusion of a valid engagement;
• describe the content and consequences of an engagement;
• explain how an engagement terminates;
• outline the grounds upon which an engagement can be validly
terminated
• outline what constitutes breach of promise and the remedies
thereto.
 Prescribed Reading
• Cronje & Heaton, pp. 5 -12
• Davel v Swanepoel 1954 (1) SA 383
• Friedman v Harris 1928 CPD 43
• Guggenheim v Rosenbaum 1961 (4) SA 21
• Krull V Sangerhaus 1980 (4) SA 299
• M v M 1991 (4) SA 587
• Schnaar v Jansen 1924 NPD 218
• Schoeman v Rafferty 1918 CPD 485
• Sepheri v Scanlan 1991 (4) SA 587.
• Smit v Jacobs 1918 OPD 30
• Thelmann v Von Geyso 1957 (3) SA 39
The Engagement
• People usually become engaged before they get married.
• An engagement may be defined as a contract between a man
and a woman on a specified or determinable date.
I.e. The engagement is an agreement by two persons to marry
each other at some future time.
• An invalid engagement will not invalidate a subsequent marriage
because even though most marriages are preceded by an
engagement, the existence of an engagement is not a
prerequisite for a marriage.
• An engagement is a contract; it will therefore be concluded by
means of offer and acceptance.
• The engagement may also be done by proxy.
• Proxy: through a representative
• Both of the parties need not be present at the
conclusion of the engagement for it to be valid.
• There exists no special formalities that need to be
carried out for an engagement to be validly concluded
and as such it may be done either orally or in written
from.
Requirements for a valid engagement
1. Consensus
• A valid agreement to marry has a consensual basis.
• There must be a meeting of the minds with regards to the engagement on
the part of both parties.
• Consensus is therefore based on corresponding volition of both parties
which is aimed at the conclusion of an engagement.
• This volition should correspond regarding the nature of the act being
concluded; the identity of the parties involved; and the content of the
agreement.
• If consensus is absent on any of the three factors, no contract of
agreement will come into existence.
• Consensus can as such be influenced by mistake, misrepresentation, undue
influence and duress.
a) Mistake
• The existence of consensus can be affected by mistake in the
narrow or the broad sense.
• Mistake in the broad sense of the word includes the mistake a
person experiences without the input of another person, as well
as mistakes which are brought to pass by another person.
• On the other hand, mistake in the narrow sense is that which
comes by with the input of another person which can be either
material or non-material.
• While a non-material mistake does not affect consensus, a
material mistake may lead to the nullity of the engagement.
• A material mistake can either be error in persona or error in
negotio:
• Error in persona - the woman or man for instance thinks he or
she gets engaged to marry x while she is in actual fact
agreeing to marry y.
• This means that there is a case of mistaken identity regarding
the person to whom a party becomes engaged to.
• Error in negotio – this is a misunderstanding with regards to
the transaction, the one party may think they are merely
entering into an informal agreement or that it is a joke.
b) Misrepresentation
• When one of the parties to the contract makes a false
representation/omission or does not correct an impression to
the other concerning facts which, had the other known the
truth, would have resulted in the contract not being
concluded at all or else concluded on different
misrepresentation is alleged, the engagement is voidable at
the instance of the party misled.
• Such party would have to consider the severity of the
misrepresentation and decide whether to continue or cancel.
 Schnaar v Jansen 1924 NPD 218
• In this case the one party cancelled the engagement after
learning that his fiancée’s uncle had murdered his wife; another
uncle had married a woman of a different race and her brother
served jail time for theft.
• The court held that these things were not a personal quality of
her and as such she was under no obligation to disclose those
facts.
• She could consequently claim damages for breach of promise.

Compare with the case with:

 Thelemann v Von Geyso 1957 (3) SA 39 (W)
2. Capacity to act
• Both parties to the engagement must have the necessary
capacity to act.
• The parties must have reached the age of majority; if one or
both parties are a minor, then they must obtain the consent of
either their parents or guardian.
• This consent may also be granted after an engagement has
already been concluded; it is then referred to as ratification.
• Once consent to an engagement has been given, consent to
marry need not be given.
• Consent may also be withdrawn after engagement but before
the marriage has been concluded.
• In Schoeman v Rafferty 1918 CPD 485, the court ordered that a
minor’s Ante-Nuptial contract be cancelled because her father
had withdrawn his consent to her marriage.
• The court stated that the father need not give any reason for
the change of mind and it is not up to the court to enquire into
his motive unless an application is brought before court to
overrule that decision of the father.
• Parents may not enter into a promise to marry on behalf of
their minor children without that minor’s consent.
• Emancipated minors also need to obtain consent.
• Mentally ill persons cannot agree to marry.
3. Lawfulness

• The agreement to marry must be lawful and must not be

contra bonos mores (against good morals).
• In Friedman v Harris 1928 CPD 43, the parties entered into an
agreement to marry with the condition that the woman
would pay the man and he would refund her if they didn’t get
married.
• Upon breach of agreement, the lady sued for return of her
money. The court held that payment for a promise to marry
renders an engagement void.
• It is against good morals and so she could not get her money
back.
• Both parties must also be unmarried.
4. Possibility of Performance

• Parties must be in a position to marry, i.e. they must not be

within the prohibited degrees of relationship.
• Where parties fall within the prohibited degrees of
relationship, performance will be impossible and as such the
engagement is void.
• If one of the parties is a minor below the age of puberty,
then performance will also be impossible.
• In Namibia, parties must also be of the opposite sex, a
promise to marry between people of the same sex is void ab
initio.
The content and Consequence of an
engagement
• Once the requirements for a valid engagement have been met,
the content of the engagement must be looked at as well as the
attendant consequences.
• Parties may have an engagement subject to conditions.
• However, impossible conditions will be regarded as pro non
scripto (as though it had not been written).
• The same applies to unlawful conditions.
• An engagement can be concluded subject to conditions.
• However, impossible and unlawful conditions cannot be
enforced.
• There is a reciprocal duty to marry on the agreed date.
• If no firm date has been set at the time of the engagement parties
must later agree on a date or marry within a reasonable time.
• Engaged parties are further required to be faithful to each other.
• That is why if either of them becomes unfaithful by entering into a
relationship with another person or becomes engaged to a third
party such action constitutes breach of promise and the other party
is entitled to withdraw from the engagement and sue for damages.
• An engagement does not give either party the right to claim
physical intimacy or sexual intercourse from the other.
Termination of the Engagement
• An engagement will terminate in any of the following ways:
1. The couple’s marriage
2. The death of either of the parties
3. A mutual agreement to terminate the engagement.
4. Withdrawal of parental consent where one of the parties is a minor.
5. A unilateral and justified termination based on a sound reason (justa causa).

• A justa causa is a fact or an occurrence which comes about after the

engagement has been entered into and which, according to human
experience will seriously jeopardize the chances of a happy and
lasting marriage for example, contracting HIV/AIDs, becoming sterile
or impotent, becoming an alcoholic, becoming mentally ill.
• In Krull V Sangerhaus 1980 (4) SA 299, the court
held that the cause must be of a sufficiently serious
nature. The disagreement by the parents of the
spouses as to the wedding reception was found to
be a frivolous circumstance that did not warrant
repudiation.
• Where unilateral termination is not justified, it
constitutes breach of promise.
Breach of promise
• This is an unlawful termination of the engagement.

• It may also arise where a party behaves in a manner

which is in conflict with the commitments implicit in the
engagement.

• The innocent party can withdraw from the engagement

and claim damages for breach of contract from the guilty
party.
• A distinction must be drawn between the action for damages
and the action for satisfaction.

An action for damages

• Can be instituted by an injured party where she/he must be
compensated for patrimonial loss she/he has suffered.
• For example, expenses incurred because of the intended
marriage no longer taking place.
• The innocent party must prove patrimonial loss.
• In Guggenheim v Rosenbaum 1961 (4) SA 21, where a man
called off the engagement to a woman after she had
relocated to South Africa; she had given up her flat, her car
and sold her furniture.
• She had even given up her job.
• The court held that there was a legal agreement which had
been breached and as such she was entitled to both actual
and prospective loss.
• Also refer to the case of Sepheri v Scanlan 1991 (4) SA 587.
Action for satisfaction
• Can be instituted by the innocent party where the aggrieved
party wants to be compensated for non-patrimonial loss
because breach of promise can also occur in a manner which
injures the honour, dignity and reputation of the innocent
party and thus infringes his or her personally rights.
• In this regard, the injured party must prove injury and also
the intention to injure, that is both, iniuria and animus
iniuriandi.
• The award for damages depends on the decision of the court which
takes into account the following factors:
• The way in which the breach of promise occurred,
• The motives behind that course of action,
• The social status of the parties.
• The previous life experience.
• See Davel v Swanepoel 1954 (1) SA 383 and Smit v Jacobs 1918 OPD
30.
• Cloete v Maritz (6222/2010) [2013] ZAWCHC 69; 2013 (5) SA 448
(WCC) (24 April 2013)
Return of Engagement gifts
• There are three types of gifts that can be distinguished; whether or
not these gifts must be returned will depend on the type of gift:
• a) Arrhae Sponsalitia – these are gifts presented to show the
seriousness of the promise to marry, for example, an engagement
ring.
• It is forfeited to the receiver should the donor commit breach of
promise.
• It can only be returned to the donor if the engagement has been
terminated without any fault on the part of the donor.
• Sponsalitia largitas - Gifts made in anticipation of the
marriage – for example, jewellery, motorcar, house or an
insurance policy acquired in favour of either party must be
returned by both parties.
• These gifts are made with the intention of benefitting the
receiver in the marriage.

• Small gifts exchanged as token of affection. These are small

inconsequential gifts which have already been used up,
alienated or lost, need not be returned.
• Even when the engagement is terminated by mutual consent, all
gifts excluding small gifts and tokens of affection must be
returned.

Satisfaction and damages on the ground of seduction

• Damages may be claimed for extra-marital sex with a virgin with
her consent.
• The plaintiff must prove that she was a virgin, that she was
seduced and that sexual intercourse ensued as a result of that
seduction.
M v M 1991 (4) SA 587
• A Hindu marriage was entered into between a minor and the defendant.
• The father of the minor had entered into an agreement with the
defendant that the marriage would subsequently be registered as a civil
marriage.
• Before the Hindu marriage was civilized, the minor consummated her
marriage with the defendant who then repudiated the agreement to
register the marriage.
• She claimed damages on the ground of seduction and breach of promise
to marry.
• The court held that the defendant was bound to his undertaking to
register the marriage and refusal to do so did constitute breach.
• She was also entitled to satisfaction for seduction.
Readings for next lecture:
Unit 3: Civil Marriages
Legal Requirements for a valid civil marriage
1. Heaton & Kruger, from p. 13
2. Mitchel v Mitchell 1930 AD 217
3. Lange v Lange 1945 AD 332
4. Ex Parte Groebler & Another 2004 NR 105
5. S v S 2010 NAHC 152
Thank You