Contract to Marry

Prepared by Ann C. Wilton, B.A., M.A. (Oxon), LL.B., of MacDonald and Partners

Family Law — General — I — Marriage — 1 — Contract to Marry

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I.1.(a) — Breach of Promise to Marry

§1 In essence, marriage is a contract; it is subject to the same rules by which other contracts are governed. The action for breach of promise to marry, however, has been repealed in British Columbia, Manitoba, Ontario and Saskatchewan, and no action shall be brought for a breach of a promise to marry or for any damages resulting therefrom. A contract to marry is subject to the rules that govern other contracts.

§2 A promise to marry need not be in writing, nor need it be evidenced by writing.

§3 Limitations legislation may be set up as a defence to an action for breach of promise. Time begins to run from the breach and, where the contract is one to be performed within a reasonable time, what is a reasonable time for performance must depend upon the circumstances of each case. The mere lapse of the time fixed for the marriage is not necessarily a breach. There must be a refusal to marry or something equivalent to refusal, such as marrying another.

§4 The plaintiff in an action for breach of promise is required to provide corroboration of his or her testimony by some other material evidence in support of the promise to marry.

§5 The contract to marry, if not to be performed within a year, must satisfy the requirements of the Statute of Frauds as to form; a promise to marry "in a year" does not come within the statute. If the evidence, however, shows that the agreement was to marry not later than a certain date which was more than a year from the date of the promise, the statute does not apply as the contract was capable of being performed within a year.

§6 A promise to marry a third party made in the lifetime of the current spouse of the promisor is illegal and of no effect in law. If such a contract to marry is made, and one party then obtains a divorce, it may be possible to infer a new and valid promise from the giving of a ring and the fixing of a date for the wedding. An action will, however, lie for breach of promise of marriage by a married man or woman if he or she was not known to be married by the other contracting party at the time of the promise.

§7 The court will not enforce a promise of marriage given in consideration of the plaintiff's entering into an immoral relationship or an illicit cohabitation.

§8 A promise to marry can be made contingent on a condition, and breach of that condition brings the agreement to an end. Even assuming that a promise is conditional and that the contingency contemplated by the parties has not happened, the repudiation of the promise by the promisor will at once give the promisee the right to claim damages for the breach.

I.1.(b) — General

§9 The parties to an action for breach of promise to marry are competent and compellable witnesses, as are parties to other actions, and may be examined for discovery.

§10 The question of whether or not the plaintiff has released the defendant from a promise is one of fact which should be left to the jury.

§11 Repudiation of a contract to marry should not be readily inferred in the case of a promisor who has reiterated an intention to carry out the promise and whose conduct, however inconsistent with such an intention, does not amount to a communication of the repudiation to the promisee. In any event, whether or not the promisor has repudiated the agreement, the promisee's action in continuing to hold him or her to the bargain and her willingness to tender performance may have the effect of keeping the contract alive. The promisor's continued existence is an implied condition of the contract, and death is a supervening event not due to his or her fault, which brings the contract to an end.

§12 In an action for breach of promise, it is no defence that the plaintiff was in the habit of using coarse or profane language, but bodily unchastity is a defence.

I.1.(c) — Damages

§13 A plaintiff who has married another person will have great difficulty in demonstrating that any damages were suffered by reason of a breach of promise of marry.

§14 In an action for breach of promise of marriage, it is misdirection to tell the jury that in estimating the damages, they may consider the feelings of plaintiff's family and friends.

§15 A defendant who breaks a promise to marry is not entitled to recover personal gifts made to the plaintiff in contemplation of marriage and during their engagement. If a man, without legal justification, refuses to carry out his promise to marry, he cannot demand the return of an engagement ring. but where the woman breaks her promise, she must return the ring. It would appear that if a marriage is called off through the fault of neither party, the engagement ring and like gifts must be returned, since a gift presented solely in contemplation of marriage is to be deemed subject to the broad and overriding condition that should marriage not take place through no fault of the person presenting the gift, the gift is to be returned. If the marriage actually takes place, it would seem that, in the absence of agreement to the contrary, the gift becomes the absolute property of the recipient, and the property is not divested by subsequent divorce or death.

§16 In Manitoba, where one person makes a gift to another in contemplation of or conditional upon their marriage to each other and the marriage fails to take place or is abandoned, the question of whether the failure or abandonment was caused by or was the fault of the donor shall not be considered in determining the right of the donor to recover the gift.

§17 The principle upon which damages are fixed in an action for breach of promise is an exception to the general rules which govern the breach of ordinary contracts. The amount of damages to be allowed is a question for the discretion of the court in each particular case. They cannot be measured by any precise rule, but are given to the injured party as an indemnity for pecuniary loss, if any, and to repair the injury to wounded feelings and affections and wounded pride, as well as loss of marriage. Special damages may be recovered if specially claimed.

§18 Where there is a promise to marry to enable one party to obtain citizenship and there is a breach of promise, only nominal damages are available to the claimant.

§19 Damages for breach of promise may be substantial where the parties have lived together for years after going through a form of marriage and the husband does not have capacity to marry because of a previous subsisting marriage.

§20 Damages for breach of promise may be substantial where the defendant promises to marry the plaintiff, the parties live together common law for a period of time and work together in a business, and the defendant is carrying on a relationship with someone else during the same period of time.

§21 If the parties cohabit for a period of time and discover that they are incompatible, no damages should be awarded for breach of promise.

§22 In Manitoba there is a statutory bar to bringing an action for any damages resulting from a breach of promise to remarry or for breach of warranty or capacity to marry or for deceit based upon a fraudulent promise to marry.