Rules of engagement.

• Author: Tushnet, Rebecca
• Position: Laws regarding broken marital engagements

In 1997, millionaire John Lattanzio sued model Ines Misan for the return of half a million dollars in gifts he had given her, allegedly in the hope that she would marry him. The scandal died down when they settled, Misan keeping gifts worth $210,000 and returning an engagement ring worth $290,000.(1) The settlement probably replicated what a court would have done,(2) which raises the question: Why does the law treat engagement rings differently from other gifts? The answer is rooted in a history in which courts generally entertained litigation over broken engagements. As legislatures slowly abolished actions for breach of promise to marry in the early and middle decades of this century, on the grounds that such actions were inconsistent with modem understandings of love and marriage, one potential fact pattern for successful plaintiffs emerged: the case in which a man sues a woman for the return of his engagement gifts.

The history and logic of this body of law--the rules of engagement--invite

examination. Most discussions of the role of the law in regulating marital relations assume that the law begins its control at: the time of the marriage ceremony. The state prescribes who can marry, and how; the state also determines the terms upon which marriages can be dissolved. The assumption is that the law's effects on premarital behavior are indirect consequences of this post-ceremonial regulation.(3) Most analyses of family law do not recognize the direct regulation of premarital behavior as a part of the no-fault regime that has grown up around marriage.

This failure to examine premarital law has prevented commentators from evaluating the ideas about property embedded in the current premarital legal regime, particularly the gendered consequences of that regime. It has also encouraged legal analysts to consider questions of the definition of property and the nature of promises to marry as settled and irrelevant to other areas of the law. This inattention is a mistake. It should be no surprise that contradictions and gendered inequities lurk in unexamined areas of family law. There is, in fact, a well-developed body of premarital law that regulates what happens when a promised marriage fails to occur. Its scope used to be quite broad indeed--allowing recovery for all manner of consequences from a failure to marry--but has in recent decades become sharply limited. Now, it mainly requires the return of tangible property transferred from one prospective spouse to the other. In practice, this means the return of engagement rings to their male donors.

The general neglect of premarital relations stands in sharp contrast to the careful attention scholars have paid to other moments in the marital relationship.(4) Even as scholars and legal reformers have become increasingly aware that marriage does not end instantaneously--recognizing, for example, that despite the "clean break" policies of no-fault divorce law, there are many lingering effects of a broken marriage(5)--they have continued to act as if marriages were created out of thin air, all obligations instantaneously in place.(6)

The idea of pure, romantic, nonmaterialistic love became so powerful over the course of the twentieth century that courts could no longer fully analyze the ways in which the economics of marriages and planned marriages were linked to the emotions surrounding them. This shift in understanding worked against many women's material interests, as once-common and oft-successful female plaintiffs(7) disappeared from the case reporters, replaced by theretofore virtually unknown, and suddenly successful, male plaintiffs.(8)

Part I of this Note gives a history of the law of broken engagements and describes the movement that began in the 1930s to reform that "heartbalm" law. Reformers, who argued that trying to measure lost love with money was ridiculous, impossible, and wrongful, successfully persuaded many state legislatures and high courts to abandon the earlier law of broken engagements.

Part II examines a set of cases that arose after reform, in which disappointed male suitors attempted to get engagement gifts back from their ex-fiancees. Courts at first applied the fault-based principles of earlier law, along with the fault judgments of the reformers, who feared gold-digging women. As no-fault principles gained prominence in other areas of marital law, courts began to apply no-fault to broken engagements as well and held that gifts must be returned. Part II then demonstrates that the doctrinal reasons elaborated for the current state of the law are inconsistent with the "antiheartbalm" laws' insistence on the noncommodifiability of love and marriage.

Part III takes up the particularly gendered effects of current doctrine, which requires the return of engagement gifts while allowing no redress for pre-wedding expenses borne mainly by women. This part discusses one potential response to such inequities, a reliance-based theory that would award relief when one party has made expenditures in reasonable anticipation of an impending marriage. A reliance cause of action, however, would reintroduce a fair amount of fault reasoning into premarital law, unless it too was made subject to bright-line rules that could make the application of reliance principles differ from actual couples' expectations.

Part IV concludes with some observations about the complexity of family law reform. Both fault and no-fault visions of family law have powerfully appealing elements, and no one answer may ever be satisfying. Some scholars have suggested that further reform of family law statutes may have only a minimal effect so long as courts continue to have discretion in defining the contours of fault and the level of damages.(9) If this is so, it is vital to understand what judges believe and what arguments they find persuasive, so that any proposed statutory reform will actually be implemented and not overwhelmed by interstitial judicial interpretation. Engagement gift jurisprudence shows what courts believe to be their role in regulating fault and distributing property in romantic relationships.

1. THE HISTORY OF THE REGULATION OF THE PREMARITAL RELATIONSHIP

   The modern rules of engagement arose from a complicated legal regime that has undergone major changes in the past century. Those changes resulted from legal reformers' conviction that the law was being abused in cases of feigned lost love and from their related belief that love and law were incompatible. The reformers' ideas about romance and appropriate female behavior made a legal withdrawal from the regulation of failed courtships seem appropriate and even imperative. The reformers' gradual success, both legislatively and judicially, then shaped the remaining rules of engagement.

   In early American law, women could recover damages when men promised marriage and then reneged; the action was known simply as "breach of promise."(10) Early breach-of-promise cases were mainly about responding to the financial harms of a broken engagement, but the action was reconceptualized over time as one centering around emotional wounds.(11) By the beginning of the twentieth century, recoverable damages included the loss of the benefits a woman would have received from marriage, her loss of a chance to marry someone else, and the emotional harm she suffered from the broken engagement, giving rise to the popular name for the resultant lawsuits--heartbalm suits.(12) The jurists who rewrote the justification for breach of promise thought that they were saving it, because a focus on the economic benefits of marriage seemed unenlightened and outdated. But the switch to an emotional justification eventually doomed the action, as courts and legislatures became uncomfortable with awarding money for emotional harms. From the 1930s through the 1950s, a wave of antiheartbalm proposals swept the United States. Responding to charges that heartbalm actions enabled designing women to blackmail worthy men, legislators in many states passed statutes eliminating breach-of-promise and related actions.(13)

   Some of the reformers understood themselves as feminists, committed to the equality of men and women, and others did not. Both groups, however, made similar arguments against heartbalm suits, focusing on the potential for blackmail by scheming women.(14) Feminists also expressed concern that the actions ensconced marriage as the epitome of a woman's existence and encouraged women to use men for economic benefits rather than to meet them on equal terms.(15) Reformers might also have been motivated by a related decline in the significance of "seduction," as a woman's apparent or actual loss of virginity was no longer enough to "ruin" her; such a woman was increasingly able to find a job and even a man who would still accept her.(16) When an unmarried woman's loss of virginity became less devastating, the justification for the actions was less compelling.

   The blackmail argument reflected a belief that heartbalm actions attracted undue attention, embarrassing both courts and the parties; men would settle baseless lawsuits, the argument ran, rather than contest the demeaning allegations involved.(17) The actions were denounced as freaks of the common law, containing unjustified and illogical mixtures of tort and contract: Though the action was based on a contract-like promise, tort damages were available, no proof of an agreement to marry was required beyond the female plaintiff's word, and witnesses who in other cases would have been declared incompetent and biased were allowed to testify.(18) These deviations from established categories occurred precisely because courtship was private, conducted differently from standard business deals, further supporting the reformers' claim that courts should avoid such cases entirely.(19) Damages, it was also said, could not be precisely measured in such cases.(20) The hybrid nature of heartbalm...