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Summary ENGAGEMENT AND DOMESTIC PARTNERSHIP
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Summary of 9 pages for the course Family Law at wits
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FAMILY LAW: TOPIC 4ENGAGEMENTS AND DOMESTIC PARTNERSHIPS
ENGAGEMENTS
CONTENTS OF ENGAGEMENT
Engagements are governed by common law.
An engagement is a legally binding agreement, in the nature of a reciprocal promise or
contract between a man and women to marry each other, either on a specific date, or on
some undetermined future date, but within a reasonable period.
There is an implied agreement that the parties will not become intimately involved with
other people and will not conduct themselves in a manner that will threaten the prospect
of a happy future marriage.
Capacity to conclude a contract of engagement
ᵒ The capacity to become engaged matches the person’s capacity to marry the other
party.
ᵒ Some people do not have the capacity to marry certain other people because they are
too closely related.
ᵒ People cannot validly promise to marry if they are still married to other people.
ᵒ The capacity to conclude a contract of engagement is determined by the person’s
general capacity to preform juristic acts.
ᵒ Children below the age of puberty have no capacity to marry. Therefore, a contract of
engagement involving a child below the age of puberty is void.
ᵒ Minors cannot be bound to a contract of engagement unless their guardian has
consented to the marriage.
ᵒ If parental consent is withdrawn before a marriage, the engagement is automatically
terminated.
ᵒ Girls below the age of 15 and boys below the age of 18 also require the permission of
the Minister of Home Affairs to conclude a civil marriage.
Termination of the contract of engagement
Fulfilment of the contract through the conclusion of a marriage.
Agreement and release: parties may mutually agree no longer to be bound by the
agreement.
Supervening impossibility: the death of one or both of the parties will terminate the
contract, as will withdrawal of the required consent by parents or guardians.
ᵒ The last 2 events will usually have no further consequences for the parties other than
the return of certain engadgement gifts.
ᵒ Unilateral but justified termination based on iusta causa (a fact or occurrence which
renders the prospect of a successful marriage unlikely) may result in lawful
termination by one party even though the other party still wants to get married.
Breach of contract of engagement
ᵒ A person will be in breach of the contract of engadgement if he or she refuses to go
through with the wedding or keeps delaying it without good reason.
, ᵒ Also, a breach of contract if one party marries another person during the subsistence
of the engadgement contract.
ᵒ The party whose conduct results in the impossibility of performance may be liable for
breach of contract.
ᵒ Also breach in contract if a person has sex with someone else, ill-treat their betrothed,
or break off the engagement without an iusta causa.
DAMAGES FOR BREACH OF CONTRACT OF ENGAGEMENT
Breach of contract:
ᵒ If a person is liable under a contract, the other party can claim specific performance and
can claim damages on the basis of positive interesse- that is, damages which put the
wronged party in the same position he or she would have been in if there had been full
and faultless performance of the contract.
ᵒ Breach of contract of engagement – courts no longer order specific performances and
they take a different approach to award the damages for a breach of contract.
ᵒ Contract of engagement – sui generis (of its own kind)
Specific performance:
- Court used to force the couple to marry even if one of them did not want too. This
is because it is not fair to force a couple into another contract especially when
that other contract involves something like sexual intercourse. Forced physical
intimacy in our law is considered rape.
- Contra Bonos Mores – putting pressure on couples to marry through the threat of
possible legal actions for breach of contract.
Damages for breach of contract:
Positive interesse:
- Not easy to calculate damages on this basis.
- What if a poor girl were engaged to a millionaire, could she argue that they would
have married in community of property and that she should therefore be entitled
to half of the fortune?
Van Jaarsvveld v Bridges – courts should not involve themselves with speculation on such a
grand scale by permitting claims for prospective losses.
Negative interesse:
- Court held that it was easier to claim for actual losses such as losses relating to
wedding preparations.
ᵒ Usually, courts awarding damages for breach of contract only award damages for
positive interesse, aimed at putting the plaintiff in the position he or she would have
been in if the contract had been properly carried out.
ᵒ Courts do not usually award negative interesse for breach of contract – not usually
award damages aimed at putting plaintiffs in the position they would have been in if
they had not entered into the contract in the first place.
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