NO, YOU CAN’T GET EVEN

If you get jilted by your lover, feel free to get mad — but the courts are clear that you are not entitled to damages for breach of promise

As a public service, here is a warning to all engaged couples, their families and anyone else with a stake in the financial wellbeing of a happy twosome: it is no longer law in SA that the offended party may sue for breach of promise if one of the couple ends the engagement.

Actually, it has not been law for a while, though apparently some lawyers advising unhappily “jilted” individuals aren’t persuaded of this fact.

What should be the last case to test the waters was heard in the high court in Pretoria earlier this year. Judgment has now been given, awarding one of the parties R123,149.63 — though this does not contradict my point about no longer being able to sue for ending an engagement.

Originally the woman asked the court to award more than R2.6m for breach of promise. She and her former fiancé had planned to marry “within a reasonable time” and as soon as they were “financially sound”. She was 40 and he was rather older, but as they both wanted children they further agreed to fertility treatment, to be started before the marriage, with the cost being shared equally between them.

Then things changed. He treated her badly, took her off his medical aid and put his new girlfriend on instead, insulted her and removed her from what had been their joint household.

Suing for breach of promise, she claimed for the potential benefits she would have gained had she been on his medical aid scheme for life, for the loss of benefits from his pension fund, and for the loss of his contributions to the joint household they would have had during his lifetime.

But in 2010 already, the supreme court of appeal acknowledged that the “historic approach to engagements is outdated” and that people now regard engagement as a time to decide whether to finally get married. It is in any case difficult to quantify damages, as a couple will usually not yet have signed or even decided on the financial arrangements under which they would marry, and it is illogical to allow divorce because of irretrievable breakdown in a relationship and not approach engagement in the same spirit.

As the judge put it in this month’s decision, the problem is heightened when the idea of breach of promise is based “on a preconstitutional heterosexual definition of marriage which traditionally placed women on an unequal footing to men”.

Though it is clear that a “jilted” formerly engaged person may no longer claim prospective losses from the “guilty party”, there might be claims for actual rather than potential loss — in this case, for example, the man’s share of the fertility treatment costs.

He had to refund her his share, ruled the judge, but other expenses she incurred and claimed back from him had to be offset against benefits she gained while the engagement lasted.

Calculating the costs

There might also be a claim for injury rather than breach of contract, depending on the way the engagement is broken off. as in this case, the one ending it acts in a way that is “offensive or insulting”, damages could be appropriate.

Awards for this kind of thing are “at best modest” though, and the court awarded her R25,000 in compensation.

As to legal costs, she was only entitled to costs on the magistrate’s court scale, as the total award fell within that jurisdiction. That’s another warning: “jilted” formerly engaged partners bent on legal action must calculate very exactly what a court will award and decide on the forum accordingly. If,