Rules of Engagement

The practice of formally entering into an agreement to marry, distinct from the marriage itself has a long history, dating back to pre-Christian times. The advantages of making such a commitment in the past were clear, because until fairly recently marriage for most people was an economic transaction, so the period of betrothal or engagement gave the parties and their families time and confidence to negotiate satisfactory terms on which the marriage may take place, and to put in place financial arrangements to support it.

Until the 17th Century a complaint of breach of promise to marry in England and Wales could be heard only in the ecclesiastical courts, with the sanction of admonishment available, but during the reign of Charles I the commercial character of the marriage agreement was recognised by Parliament and actions for damages by an aggrieved party to a broken engagement became permissible. By the beginning of 19th century a golden age of breach of promise litigation had commenced, with hundreds of cases being prosecuted each year, and a cottage industry in lawyers specialising in the area sprang up. Damages awarded reflected not only the immediate costs which a disappointed party may have unnecessarily incurred in pursuing an unsuccessful love match, but for women, the damage suffered to their reputation as well, it being widely assumed that a woman who had already been betrothed was a less desirable proposition in the marriage market. Nevertheless, in the days before statutory child maintenance a breach of promise action did at least permit a woman who had fallen pregnant by a man of means to recover compensation if he let her down, even if she faced the stigma of illegitimacy.

By the end of the 19th century however the law had begun to fall into disrepute, with innocent, often wealthy, parties regularly facing fictitious claims from litigants who swore that person had promised to marry them. In the light of these actions for “unjust enrichment” multiple attempts were made to change the law before the Law Reform (Miscellaneous Provisions) Act 1970 finally put paid to claims for breach of promise of marriage, by abolishing the right of action altogether.

Interestingly though, the same legislation did confer on engaged couples a right in law which is often overlooked, and which caused the lawyers involved in the matter of Dibble and Pfluger [2010] EWCA Civ 1005 quite a bit of embarrassment. In that case an engaged couple embarked on a series of property development projects – as it happens in Worthing – before breaking up. A claim was brought under the Trusts of Land and Trustees Act 1996 to determine the extent of the parties’ beneficial interests in the properties, which was argued by counsel for the litigants and determined by the recorder who heard the matter without considering s.2 of the Law Reform (Miscellaneous Provisions) Act 1970, which extends s.37 of the Matrimonial Proceedings and Property Act 1970 to engaged couples. The effect of this piece of legislation is to permit a party to an engagement to recover their investment in a property owned by the other party, regardless of strict legal ownership, and when the matter was heard by the Court of Appeal the error was immediately recognised.  The case was remitted for a retrial, the court correctly identifying the enhanced rights of engaged couples in these circumstances.

One more point. In 2017 couples spent an average of £1,080 on their engagement ring, down almost 20% from 10 years ago, but still a tidy sum. And the question for divorce solicitors is sometimes asked – can I get the ring back? In most cases the answer is no –  S.3 (2) of the Law Reform (Miscellaneous Provisions) Act 1970 makes it clear that an engagement ring should be regarded as an absolute gift, and that any assertion to the contrary must be supported by clear evidence  (Parliament’s reasoning behind the section was that an engagement ring was a love token and that a wronged woman should have the right to throw her lover’s ring in the river). Where a party is contemplating giving their intended a valuable heirloom on their engagement therefore the advice is clear – speak to a solicitor before doing so.

Stephen Collett

About Stephen Collett

Steve is a partner in the firm and has practised all aspects of family law for over 20 years. He is a member of the Law Society’s Family Law Panel (Advanced). Steve is available to see clients in our Worthing, Bognor Regis or Chichester offices.

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