Legal Requirements for an Engagement
Arisha Rajaram
Lawful engagement and termination
In terms of South African Common Law, an engagement between two persons is deemed to be a contract between two parties to marry each other on a specific date. For an engagement to be legally binding and enforceable, there are certain requirements which must be met. These requirements are discussed below, and include:
- capacity;
- consent; and
- lawfulness.
Capacity to enter into an engagement
To enter into an engagement, a person needs to be over the age of 18 years or older and have the mental capacity to understand and acknowledge an engagement. Should a minor (a person under 18 years) wish to get married, consent of both the minor’s parents, and legal guardians, is required. A minor may also get married if there is a court order to this effect. Any person who is mentally ill, cannot get engaged, as they lack the capacity to understand and appreciate this commitment.
Consent of parties
Like any contract, an engagement requires that both parties’ consent to the engagement, and there needs to be a meeting of the minds (both parties to be on the same page). Consent must be given freely and voluntarily and without any undue influence. However, there are certain legal factors which may render a consensual engagement voidable.
Mistake
Should a party enter into an engagement under a misconception or as to mistaken identity as to who they are getting engaged to and/or the identity of a person being different to what they thought, then this will render the engagement void.
For example, believing you are engaged to a Celebrity, based on information they had provided to you, but you later find out that that all the information was false.
The above example is a clear indication of mistaken identity.
Misrepresentation
Misrepresentation occurs in instances where an innocent party would not have become engaged if they had been aware of a certain fact or circumstance of the other party. If the misrepresentation is so serious that it compromises the chances of having a happy and harmonious marriage, the engagement will be void.
Misrepresentations can take the form of failing to reveal or concealing qualities, such as impotence, sterility, serious mental illness, and alcohol or drug addiction, where there may have been a duty to do so, and failure of informing the other party would reduce the happiness in a relationship. Misrepresentation may also include failing to inform your partner that you are pregnant with someone else’s baby.
Lawfulness
The engagement process needs to be legal. Terms of illegality can include getting engaged to someone while married to someone else as it is against good morals, or forcing a person to get engaged without their consent
Termination
Termination of an engagement may occur in certain circumstances:
- on the marriage itself;
- on the death of either of the engaged persons;
- by mutual agreement;
- by the withdrawal of parental consent, where one of the parties is a minor; and
- by the unilateral termination of one of the parties.
Terminating an engagement may in some instances constitute a breach of promise, depending on the severity of the breach and emotional harm caused. Courts are sometimes sceptical to deal with breach of promise, as it was difficult to prove.
Breach of an engagement
An engage is a contract, entered into between two parties. The courts are reluctant to grant orders of breach, as a party should be entitled to step away from an engagement without any legal consequences. However, in certain instances and on proof supplied, a party may sue the other party for breach.
Before marriage
Prior to getting married, always ensure that both your partner, yourself and all assets are legally protected. It is always a good idea to enter into and sign an antenuptial contract prior to getting married or registering your marriage.
Article Disclaimer
This article is not intended to provide legal advice. This article is a general information sheet and should not be used or relied on as legal or other professional advice. This article is based on research regarding the UIF and may be subject to change. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).
For further information, please contact Rajaram Mvulane Attorneys at info@rajarammvulane.co.za
