Once upon a time, it was possible to seek damages for a broken engagement. Under English law before 1 January 1971, an engagement to marry involved an enforceable promise. Where a male fiancé broke off the engagement the female fiancée could pursue an action for breach of promise of marriage. (The law did not work the other way around, so the man had no legal remedy where the woman broke it off). The common law allowed for a number of possible defences including false representation, fraudulent concealment in material particulars, bad character or incapacity. Damages were not assessed against any fixed standard and were largely in the discretion of the judge (and not the special jury who would sometimes determine liability).
One of the last defendants to be successfully sued was George Best who ultimately settled out of court to his former fiancée Eva Haraldsted, to whom he had proposed eight days after meeting her for the first time (see photo). The reported settlement was £500, equivalent to around £11,000 today.
In October 1969, the Law Commission recommended modernising the law to abolish actions for breach of promise, which was put into effect by s.1 of the Law Reform (Miscellaneous Provisions) Act 1970. Each section of that commendably short statute is noteworthy: s.2 extended certain limited marital property rights to engaged couples (referred to in greater detail below); s.3 created a rebuttal presumption that an engagement ring was an absolute gift and s.5 abolished the torts of seduction, enticement, and harbouring. (The mind boggles at the thought of our predecessors attending court to deal with a short seduction matter or damages for a jilting).
What now is the legal significance of an engagement?
Significance of an engagement in a claim for financial remedies
As family lawyers, we have become used to the rather strange concept that the duration of a marriage isn’t simply working out the period of time between a wedding and divorce. It starts with the date when the parties entered into a committed, settled (and in many cases. cohabiting) relationship, and ends with the final date of separation.
While this question will be of only academic interest in most cases where the magnetic factor is financial need, the duration of the marriage can be hugely significant where the issue is determining the extent of a sharing claim. Many millions of pounds can, and do, turn on what period of time is encompassed by the marriage.
The latest case on this issue is Peel J’s decision in VV v VV [2022] EWFC 41, which is about as bad as it gets when it comes to anonymised case titles: confusing both on paper (it’s V V not W) and also orally, for anyone who isn’t aware of the convention of pronouncing “v” as “and” (otherwise, phonetically, it would be “V V V V V”).
That detail aside, VV is another magisterial judgment from Mr Justice Peel which between [40] and [46] reviews the authorities in relation to the vexed issue of the duration of a marriage, and concluded that:
[44] … where cohabitation is in dispute, the court may need to inquire to an extent into the state of the relationship when evaluating the durability and permanence of the alleged cohabitation.
[45] … To the above jurisprudence I would add that the court should also look at the parties’ respective intentions when inquiring into cohabitation. Where one or both parties do not think they are in a quasi-marital arrangement, or are equivocal about it, that may weaken the cohabitation case. Where, by contrast, they both consider themselves to be in a quasi-marital arrangement, that is likely to strengthen the cohabitation case.
[46] … In the end, it is a fact specific inquiry. Human relationships are varied and complex; they do not easily lend themselves to pigeon holing. The essential inquiry is whether the pre-marital relationship is of such a nature as to be treated as akin to marriage.
The court then turned to a question which, perhaps surprisingly, has not been considered before. What is the relevance of the date of the parties’ engagement in consideration of a sharing claim? Should this be taken into account? The court’s answer was that, as with so many issues…
[48] It must surely depend on the circumstances. It is unlikely, for example, that a lengthy period of engagement, with few or no indicators of cohabitation, would justify an entitlement to assets accrued pre-marriage. It is hard to see how engagement without mutual commitment and shared lives akin to a marital relationship would come close to justifying an equal share (or any share) of assets built up between the date of engagement and the date of marriage. In my view, engagement may be an indicator of the strength of the commitment and shared life, and may be an evidential factor pointing towards a period of cohabitation, but it should not ordinarily be seen as a separate event which by itself gives rise to a sharing entitlement.
In other words, in a high value claim, where the court is concerned with establishing the quantum of a sharing claim, the date of engagement may be relevant, although it may not be determinative if the engagement was not accompanied by mutual commitment such as cohabitation. (Query what an engagement without mutual commitment might look like?)
Significance of engagement where the parties do not marry
One of the dustiest corners of the law relates to s.2 of the Law Reform (Miscellaneous Provisions) Act 1970 (see above), which amends s.37 of the Matrimonial Proceedings and Property Act 1970 so that a formerly engaged party may claim a share, or an enhanced share, based upon her substantial contributions.
Section 37 of the MPPA 1970) not to be mistaken with s.37 MCA 1973) is very far from a model of clear Parliamentary drafting. It provides as follows:
“…It is hereby declared that where a husband or wife contributes in money or money’s worth to the improvement of real or personal property in which or in the proceeds of sale of which either or both of them has or have a beneficial interest, the husband or wife so contributing shall, if the contribution is of a substantial nature and subject to any agreement between them to the contrary express or implied, be treated as having then acquired by virtue of his or her contribution a share or an enlarged share, as the case may be, in that beneficial interest of such an extent as may have been then agreed or, in default of such agreement, as may seem in all the circumstances just to any court before which the question of the existence or extent of the beneficial interest of the husband or wife arises (whether in proceedings between them or in any other proceedings).”
In other words, a claim might be pursued where the following conditions are met:
- the parties were engaged (which will have to be proven if in dispute);
- a formerly engaged party has made a substantial contribution in money or money’s worth;
- to the improvement of real or personal property in which she or the other party has a beneficial interest;
- the claimant may be treated as having thereby acquired a share, or an enlarged share, to the extent that either was agreed or, in default of agreement, might seem just;
There is, unfortunately, an almost complete dearth of authority as to how the court should interpret these provisions, save that (a) Mossop v Mossop [1989] Fam 77 makes it clear that the applicable law is the law of property and trusts. There is no jurisdiction to make a property adjustment order between an engaged couple who had not been married, and (b) in the delightfully named Dibble v Pfluger [2010] EWCA Civ 1005 the Court of Appeal reminded the parties that they both had overlooked the possibility of mounting a claim under Section 37 and remitted the matter back for rehearing.
Alternatively, an engaged party may seek declaratory relief and orders for sale pursuant to s.17 of the Married Women’s Property Act 1882. On such an application, the court will apply the law of trusts and the three year limitation period will apply.
Alexander Chandler KC
21 July 2023
Family Brief 