MCGREGOR
ENGAGEMENTS ARE made and broken every day. Many of them are highly publicised and documented, such as Paris Hilton to Paris Lastis and Jennifer Lopez to Ben Affleck, but still many others dissolve discretely and broken hearts continue to beat. The sensational stories behind broken engagements usually evoke far more intense discussion than the fact of the break-up itself. But, have you ever considered whether there are legal consequences of breaking an engagement?
What appears to be trivia today was a serious matter in the 19th century, because an engagement meant that the woman's husband would replace her father as the object of her dependence, and she would come into her role as a "virtuous homemaker", good wife and other. After marriage, all her property would belong to her husband.
The Oxford Dictionary defines an engagement as a promise to marry. The mutual exchange of such promises by two lovers creates a binding and enforceable contract for them to marry within reasonable time. If that contract is broken, either party could sue to recover damages. This is the law in Jamaica today! Either party to a broken engagement may bring an action under the common law to recover damages or breach of contract, and such an action may be continued by a party's estate after he or she has died.
HISTORY OF THE ACTION
Invariably, women were the claimants in actions for breach of promise to marry, because they were more often than not the party injured by the broken engagement. A woman whose engagement was broken off was considered "soiled merchandise," because it was thought that a woman would be more likely to give up her virginity if she had the promise of a man to marry her. Her injury was usually the reduced prospect of attracting another suitable marriage proposal and if during the period of the engagement the man had seduced her or communicated a disease to her, the damages would be significantly increased.
Awards of damages could be reduced if the man could show that he lacked the character or means to keep the woman in the style to which she was accustomed. He could also do this by proving that the woman had loose morals or a bad reputation.
The turn of the 20th century heralded the clamour by women for social, political and economic independence. With this emerged a generation of working-class women for whom gainful employment was a viable alternative to marriage. As the action for breach of promise to marry was premised on women's dependence on men, the number of claims for breach of promise to marry decreased because women suffered less economic harm by the breaking of an engagement.
ABOLITION IN MANY COMMON-LAW JURISDICTIONS
By the early 1930s, many states in the USA had passed legislation to abolish actions for breach of promise to marry. Similar laws were passed in England in 1970 and in Australia in 1976, because the social environment no longer attached a significant social stigma to a failed engagement. This meant that even if the actions were successful, substantial awards of damages were unlikely.
One writer (Brinig) traced the increased demand for large, expensive diamond rings to the abolition of actions for breach of promise to marry. The engagement ring became a symbol of the sincerity and credibility of the marriage commitment. But, who is entitled to keep the ring after the engagement is broken?
Sherry-Ann McGregor is an attorney-at-law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback to lawsofeve@yahoo.com.
