Common law is law created over time by custom, by the behaviour and norms of society and by decisions the courts make. In terms of engagement rights, South African common law has historically recognised that where an engagement is broken off, there can be a claim for breach of promise.

This claim would be made up of two parts:

·      Damages for embarrassment caused by the break off of the engagement

·      Financial loss which the other party may have suffered as a result of the break off of the engagement

Because it’s linked to societal norms and standards, common law evolves along with them. This was demonstrated in the recent case of Van Jaarsveld v Bridges in 2010, where the Supreme Court of Appeal made a decision about engagement rights.

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 future bride in December 2005 advising her that he no longer wished to get married and apologising to both her and her mother.

The bride then instituted an action against the groom for damages, based on the humiliation caused by his breach of promise to marry her. She also claimed a monetary amount for the financial loss she suffered because the wedding was called off.

The High Court initially awarded her R110 000 for the first claim and R174 000 for the second. The groom-to-be then appealed to the Supreme Court of Appeal (SCA).

The SCA disagreed with the award of the High Court because it didn’t reflect the duty of the courts to develop the common law. Whilst the court recognised that a jilted bride may have a claim for actual expenses incurred as a result of the planning of the wedding, a claim no longer existed for the humiliation that was caused. The court’s view was that an engagement is 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 regarding engagement rights was followed in a later case of Cloete v Maritz in 2013 . Here, following a 10 year engagement, an aggrieved bride-to-be sued her reluctant groom for money she had given him to fund his business. She also sued for loss of the financial benefits she would have enjoyed had they married, as well as a claim for the humiliation caused by the break up.

The court echoed the sentiment of the SCA in the Bridges decision and held that the recognition of a claim for breach of promise didn’t take into account the changed morals of the public. The court agreed with the SCA’s view that a claim would lie for actual expenses incurred due to the preparation for a wedding, but that was all.

Society’s view of divorce has undergone dramatic changes in the law few decades and the decisions of the courts have brought engagement rights and laws in line with these changes in societal norms.

* Gillian Lowndes Divorce Attorneys