“Will you marry me”

The common law of a country is the law which is created over time by custom (i.e. the behaviour and norms of society) and judicial precedent (the decisions of the courts). The common law of South Africa has historically recognised a claim for breach of promise in situations where an engagement is broken off.

This claim would comprise two parts:

• a damages claim for the embarrassment caused by the break off of the engagement; and
• a claim for the financial loss which the other party may have suffered as a result of the break off of the engagement.

Common law, being inextricably linked to societal norms and standards evolves with those changing norms. This has been demonstrated in the recent case of Van Jaarsveld v Bridges in 2010, a decision emanating from the Supreme Court of Appeal.

The facts of the situation were briefly as follows. The parties got engaged in July 2005 and set a wedding date for January 2006. The groom to be then sent an SMS to his soon to be bride in December 2005 advising her that he no longer wished to marry her and further apologising to her and her mother.

The bride to be instituted an action against the groom for damages based on, in simple terms, the humiliation caused by the breach of promise to marry and a monetary amount from the financial loss suffered by her as a consequence of the break off of the engagement.

The High Court initially awarded her R110 000, 00 for the first claim and R174 000, 00 in respect of the second. The groom to be then took that award on appeal to the Supreme Court of Appeal (the “SCA”)

The SCA disagreed with the award of the High Court for a number of reasons but most importantly reflected on the duty of the courts to develop the common law. Whilst the court recognised that a jilted bride or groom may have a claim for actual expenses incurred as a result of the planning of and preparation for the marriage, no claim existed any longer for the humiliation caused by the event nor any other financial loss that may have been occasioned by the break up. The court’s view was that an engagement is more of a time during which parties get to know each other better and decide if they actually want to get married rather than an enforceable contract. The bride to be ultimately walked away with nothing.

This decision has been followed in a later decision Cloete v Maritz in 2013 and in the Western Cape in which, and following a 10 year engagement, an aggrieved bride to be sued her reluctant groom for certain funds she had given him to fund his business interests, loss of financial benefits she would have enjoyed had they marred and a claim for the humiliation cause by the break up.

The court echoed the sentiment of the SCA in the Bridges decision and held that the common law recognition of a claim for breach of promise in the circumstances of an engagement did not take cognisance of the changed morals and public interest. The court agreed with the SCA’s view that a claim would lie for actual expenses incurred due to the preparation for a wedding, however that was all.

Society’s view of divorce has undergone dramatic changes in the law few decades and the decisions of the courts in the above decisions have brought the laws of engagement in line with the change in social mores and norms.

By Gillian Lowndes, attorney specialising in family law