§ 1.05 Actions Between Persons Who Were Engaged to Be Married
| Jurisdiction | United States |
| Publication year | 2021 |
§ 1.05 Actions Between Persons Who Were Engaged to Be Married
[1]—Breach of Promise of Marriage
An action for a breach of promise of marriage has existed for at least two centuries.201 One commentator has theorized that the cause of action was accepted because of the substantial commercial aspects of marriage during that period.202 Marriage, however, has evolved, at least for most, into an attachment based upon sentiment, rather than on mercenary concerns. In addition, the period of engagement is now considered a trial period, one during which the parties are encouraged to question the belief that the intended will be an appropriate spouse. Further, the appropriate age for marriage has become much less rigid, so if a marriage is called off neither party thereby misses a "window of opportunity" to be married. It is therefore not surprising that many states have abolished the breach of promise of marriage action.203
Nevertheless, the action is still permitted in a number of states.204 In order to establish such an action, the couple must agree to be married.205 No corroborating testimony of third parties is generally required. However, there must be some evidence that the parties behaved as if they were engaged.206 An unaccepted offer to marry obviously would not create such an agreement. If the engagement is terminated by one party, the "wronged" party may sue.
Certain defenses exist to a breach of promise of marriage action. For example, if a party misrepresented a material fact, such as the existence of an illegitimate child207 or the true circumstances surrounding an earlier divorce,208 the other party is permitted to terminate the engagement. If one party is already married to another, the promise to marry is unenforceable, even if both parties were aware of the marriage at the time of the engagement.209 If a promise to marry is made in exchange for sexual relations, the contract is illegal and unenforceable.210 A Georgia court has held that, while living together has been held to be against public policy and a bar to a cohabitation remedy when the relationship ends, it does not bar a breach of promise claim if the parties were living together when they became engaged.211 Some states require the party suing to send a detailed notice of an intention to sue before suit is initiated.212
To bring a breach of promise action in Tennessee, a proponent must either prove the engagement by a signed written agreement or by testimony from two disinterested witnesses.213
Damages for a breach of promise action can be quite large. A breach of promise action seems to oscillate conceptually between contract and tort theories.214 In order to determine whether there is a valid agreement to marry, contract theory applies. In contrast, damages apparently are calculated based upon tort principles. For example, a plaintiff can recover for injury to feelings, health and reputation.215 The plaintiff's damages can reflect a loss of status and wealth, if the "jiltor" is wealthier than the "jiltee."216 Seduction may be proved as an element in aggravation of damages.217
In a Georgia case, the woman alleged that, when the man proposed to her, he did not intend to marry her. The court ruled that this could be grounds for a fraud claim.218
In a North Carolina case, a woman obtained a judgment for $130,000 in a breach of promise action.219
Under traditional choice of law rules, the governing law would be the place where the engagement occurred. However, under the modern interest analysis or most significant relationship tests, the law of the parties' domicile might well govern.220
In an era that accepts no-fault divorce, this cause of action is obviously a disaster and should be put out of its misery. For example, a spouse can file for divorce one day after the marriage, and no breach of promise damages are possible. Until the breach of promise action is abolished, however, lawyers must advise clients that an engagement cannot be undertaken lightly in jurisdictions where this cause of action still exists. Even in these states, there is no action for inducing a breach of a marriage contract.221
An action for humiliation and loss of position stemming from a terminated engagement should be distinguished from an action for out-of-pocket losses. For example, a bride's family may have bought a wedding dress and paid other deposits that will be lost if the wedding does not occur. Similarly, one party may have quit a job and moved to join the prospective spouse, incurring expenses and losing income. Such out of pocket losses are clearly recoverable in a breach of promise action.222 Indeed, they may be recoverable on some general equitable ground even in those states that have abolished the breach of promise action.223
Some types of other claims may be possible even in states that reject this cause of action. In an Ohio case, a woman transferred property to a man while they were engaged. After the engagement was terminated (it is unclear who decided to terminate it), the woman sued the man to recover the property, claiming unjust enrichment. The court granted her claim, even though Ohio has abolished the breach of promise action.224
[2]—Return of Engagement Gifts
Persons engaged to be married frequently exchange gifts. A question then arises whether the gifts must be returned if the engagement is terminated.
The first issue presented is whether there was a gift at all. A "gift" requires a present intent to make a gift and delivery and acceptance of the gift.225 If there was no present intent to make a gift, or if there was no delivery or acceptance, there was no gift.
A New York court has concluded that if one engaged person pays off all the other's outstanding debts, this can constitute a conditional gift.226
Most courts agree that a couple must be engaged before the conditional gift theory can be utilized. So, if people are planning to marry after one party divorces, but the party does not in fact divorce, the conditional gift theory is generally not applied, because the still-married person does not have the capacity to be engaged to another.227 A New York Court has applied this rule to a gift made while the donor was divorcing his wife, but the divorce had not been finalized at the time of the gift.228
The Mississippi Supreme Court has agreed with this New York approach. In the Mississippi case, a married man gave an "engagement ring" to a woman with whom he was having an affair. The woman later gave birth to his child. When she sued for child support, the man made a counterclaim for the value of the ring. The court held that the ring was not a conditional gift because he was married to another when the ring was given.229
If the donor agreed to marry the donee and was not aware the recipient was legally married to another, a New York court has determined that the gift can be recovered.230
If a claimant cannot establish that the gift was given in connection with a promise to marry, the gift will not be considered a conditional gift.231
So, if one person in a domestic partnership gives the other a ring, but they are not engaged to marry, the conditional gift rule does not apply.232
If there was a gift, does it have to be returned? Courts first try to determine whether the gift involved was a final, completed gift or a conditional gift. Namely, was it merely a completed gift not conditioned upon the planned marriage, such as a Christmas gift or a birthday gift, or was it a gift in contemplation of marriage? This determination could be made based upon the value of the gift and the date of delivery. The rule of thumb is that all gifts after the engagement, including the ring, are conditional gifts.233 Gifts before the engagement are generally not considered conditional.234
The circumstance surrounding a gift can impact the determination of whether the gift was conditional. For example, a New York court ruled that a ring given on the donee's birthday was not a conditional gift.235
A South Dakota court found that a gift of money was a conditional gift where the memo portion of the check indicated it was to be used to pay wedding expenses.236
In a Utah case, the court held that paying for travel, a son's car, and vasectomy did not consititute conditional gifts because there was no express indication at the time the expenses were incurred that they were conditioned upon marriage.237
An Ohio court has ruled that there should be a distinction between an engagement ring and all other gifts exchanged between an engaged couple. Only the ring should be considered a conditional gift.238 This court also held that a gift to the fiancee's mother should not be considered a conditional gift.
Conditional gifts are not recoverable by the donor in all situations, however, if the engagement is broken. Under the traditional rule, if the donee breaks the engagement, or if the engagement is broken by mutual consent, the gifts must be returned.239 If the donee fraudulently said he or she would marry, when there was no intention to marry, gifts must be returned.240
In contrast, if the donor breaks the engagement, in many states the donor generally has no right to the gifts.241 This is done apparently to punish the donor. Such a result is inconsistent with the idea that the engagement period is a trial period to determine whether marriage is appropriate. Indeed, in view of the social costs of divorce, parties should be encouraged not to marry if they are unsure. This "donor fault" rule has the opposite effect and should be changed. One court has suggested that the "fault rule" is intended to compensate the fiancee for funds spent planning the wedding.242
Under the "fault rule" approach, courts must determine who was "at fault." Some courts have focused on who broke the engagement. This might not be fair if a party ends an engagement due to the other party's violent behavior.243
Other courts have tried to analyze whether the party broke the engagement...
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