The fact that actions for breach of promise of marriage were still occasionally brought raised the question of their utility. If either party to an engagement was convinced that he (or she) ought not to marry the other, it was highly doubtful whether public policy was served by letting the threat of an action push him into a potentially unstable marriage or by penalizing him in damages if he resiled. The Law Commission therefore recommended the abolition of these actions 9 and this recommendation was implemented by section I of the Law Reform (Miscellaneous Provisions) Act 1970. This provides that no agreement to marry shall take effect as a legally enforceable contract and that no action shall lie in this country for breach of such an agreement, wherever it was made.
Property Of engaged couples.
The action of breach of promise of marriage might occasionally fulfill a social function by permitting a party to recover expenses which he had incurred in contemplation of the marriage. To take three examples: the woman might have travelled a considerable distance to marry and live in this country; the man might have bought furniture which he no longer needs; both parties might have spent money and labor in securing a mortgage On the proposed matrimonial home, decorating it and carrying out repairs on it. There is now no remedy at all for the first two types of loss. With respect to the third, engaged couples acquiring property for use in their married life together are in a position little different from that of a newly married couple and consequently section 2(1) of the Law Reform (Miscellaneous Provisions) Act 1970 seeks to give them some protection by enacting-
Where an agreement to marry is terminated, any rule of law relating to the rights Of husbands and wives in relation to property in which either Or both has or have a beneficial interest shall apply, in relation to any property in which either or both Of the parties to the agreement had a beneficial interest while the agreement was in force. as it applies in relation to property in which a husband or wife has a beneficial interest. ‘ It therefore follows, for example, that if a man purchases a house in his own name partly with money provided by his fiancee and they enhance its value by doing work on it, the use of her money and her contribution to the improvement of the house will give her the same interest in it as she would have acquired had the parties been married at the time.
Gifts between engaged couples.
At common law a gift made by one party to an engagement to the other in contemplation of marriage could not be recovered by the donor if he was in breach of contract. This meant, for example, that if the man broke off the engagement without legal justification, he could not recover the engagement ring, but he could do so if the woman was in breach of contract. In conformity with this principle that the parties’ rights with respect to property should not depend upon their responsibility for the termination of the agreement, section 3(1) of the Law Reform (Miscellaneous Provisions) Act 1970 now provides: •A party to an agreement to marry who makes a gift of property to the other party On the condition (express or implied) that it shall be returned if the agreement is terminated shall not be prevented from recovering the property by reason only of his having terminated the agreement.’
Whether a particular gift was made subject to an implied condition that it should be returned if the marriage did not take place must necessarily be a question of fact to be decided in each case. Normally birthday presents and Christmas presents will vest in the donee absolutely, whilst property intended to become a part of the matrimonial home (for example, furniture) will be conditional. It is suggested that the general test to be applied should be: was the gift made to the donee as an individual or solely as the donor’s future spouse? If it is in the latter class, it will be regarded as conditional, whereas if it is in the former, it will be regarded as absolute and recoverable only in the same circumstances as any other gift •or example, on the ground that it was induced by fraud or undue influence. The engagement ring is specifically dealt with by the statute.
The gift is presumed to be absolute but this presumption may be rebutted by proving that the ring was given on the condition (express or implied) that it should be returned if the marriage did not take place for any reason.l One would have thought that by current social convention an engagement ring was still regarded as a pledge and that the presumption ought to have been the other way. As it is, the ring is likely to be recoverable only in the most exceptional circumstances, for example if it can be shown that it was an heirloom in the man’s family.
If a gift in contemplation of marriage is made to one or both of the engaged couple by a third person (as in the case of wedding presents), it is. in the absence of any contrary intention, conditional upon the celebration of the marriage and must therefore be returned if the marriage does not take place for any’ reason at all.2 A contrary intention will clearly be shown if the gift is for immediate use before the marriage.