Requirements for a valid engagement
As a point of departure, it is crucial to note that South African law does not require an engagement in order to conclude a marriage. An engagement is a pactum de contrahendo, which means that it is an agreement between two or more parties who have the serious intention of creating a legal obligation in terms of South African contract law.[1] As such, termination of an engagement constitutes a breach of contract. To claim damages in respect of such a breach of contract, an engagement must be valid. The parties to the engagement must have had the capacity to act, meaning that both parties must have been over the age of 18 years. In the case of a minor, the necessary consent is required from his/her parent or guardian unless the minor is emancipated by the court.
The validity of an engagement is also based on consensus. It is concluded by way of offer and acceptance with no misrepresentations. However, parties do not need to be in the presence of each other. It is also crucial to note that at the time of the engagement, both parties must be in a position to conclude a civil marriage with one another; therefore, the parties must be unmarried. Where a partner who is married at the time of the proposal, promises marriage to a third party after obtaining a divorce or a spouse’s death, the engagement is void. If the promised partner did not know about the existing marriage, then they can sue the married party for contumelia (an insult).
Termination of an engagement
A successful engagement doesn't mean it can last forever - there are certain circumstances in which parties may lawfully end their commitment to each other. With mutual agreement, or due to marriage or death of either partner, parental consent withdrawal when one is a minor, misrepresentation by another party and sound reasoning such as sterility and impotence on the part of either person involved – these all provide legitimate reasons for breaking off an engagement.
Conclusion
There are specific requirements that need to be met by both partners to constitute a valid engagement. However, the constitution of a valid engagement does not preclude any of the parties from subsequently terminating the engagement.
