Legal Talk

For a couple in love who want to be married to each other and spend the rest of their lives as a couple, getting engaged is a time of much excitement and anticipation as they plan their "big" day. In terms of South African law, the act of becoming engaged creates legal rights between the intended spouses. By becoming engaged to each other, both parties enter into a "contract" to marry each other on a specific date or sometime in the future. Even though there are no legal formalities in an engagement, in order for the engagement to be valid, there are certain requirements, which must be met. Briefly they are as follows: Both parties must consent to the engagement. Coercing a person to get engaged against his or her will nullify the engagement. They must both have the necessary capacity to act. A person with a mental illness cannot get engaged. Both parties must be 18 years or older. If either or one of them is still a minor, their guardians must duly assist them. The engagement must be lawful. If a man is already married to someone else in terms of South African civil law, i.e. the marriage is registered at the Department of Home Affairs, that engagement would be considered to be "contra bonis mores" and would be seen to be against public policy. In a case before the High Court in August 2014, a man took his ex fiancÈe to court when their engagement broke. He demanded that she return certain items of furniture belonging to him as well as that she return his engagement ring. At the time of the engagement, the woman was still married to someone else but was in the process of finalizing her divorce. The man said that he gave the woman some of his furniture for her to store at her home, as well as the engagement ring. The woman opposed the application on the basis that the items of furniture were donated to her by the man as gifts, a claim which was denied by him.The court held that a donation can never presumed and must be proved by the person who claims that there was such a donation. The woman also refused to return the engagement ring to the man. She maintained that in view of the fact that she was still married to someone else at the time of the engagement, the man was not entitled to the ring. She argued that both parties were at fault because their engagement was contra bonis mores and the engagement was therefore unenforceable. The court did not agree with her reasoning. It said that the engagement ring was given to the woman "in contemplation of a marriage and therefore was a "conditional gift". Since the couple did not get married, that condition of marriage was not fulfilled. The court held that the ring therefore had to be returned to the man and further that this would also apply even if the engagement was void from the outset because it was contra bonis mores. It ordered the woman to return the furniture and engagement ring to the man.

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