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Engagement and the Law

Engagement Law
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:

  1. 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 or not 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.
  2. 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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BERTUS PRELLER
​MAURICE PHILLIPS WISENBERG

20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115


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  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Custody and Coronavirus
    • Relocation and Child Abduction >
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • Parental Alienation
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting Wife
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • Family Law Newsletter March 2017
    • September 2016 Family Law Newsletter
    • Family Law Newsletter 2017 1
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities