In case where has been an order of the Court forbidding or limiting the power of either spouse to manage the Sin Somros , if the cause which was the ground for the Court order or the circumstances have later changed, either spouse may apply to the Court revocation or change of the order forbidding or limiting the power to manage the Sin Somros. The Court in this effect may give any order which is deemed suitable. The husband or wife may apply to the Court for authorizing him or her to be the manager of any particular Sin Somros or participate in the management, if such management or participation will bring about more benefit.
Where either spouse is personally liable to perform an obligation incurred before or during marriage, such performance shall be first made out of his or her Sin Suan Tua ; if the obligation is not performed in full, it shall be satisfied out of his or her portion of the Sin Somros. Where both spouses are common debtors, the performance shall be made out of the Sin Somros and the Sin Suan Tua of both spouses. Debts that both spouses are jointly liable to perform, shall include the following debts incurred by either spouse during marriage:.
If either spouse is adjudged bankrupt, the Sin Somros is divided by operation of law as from the date of adjudication. Any property obtained after the division by either spouse shall be Sin Suan Tua of that spouse and not be regarded as Sin Somros. And the property acquired thereafter by the spouse through a will or gift made in writing under Section 2 shall become Sin Suan Tua of the husband and wife equally.
In case the division of the Sin Somros is made by the order of the Court, the revocation of the division shall be made upon the request of either spouse and the Court has given the order to that effect. If either spouse raises an objection to such request, the Court cannot give an order for the revocation of the division of the Sin Somros unless the cause for division of the Sin Somros has ceased to exist.
After the division of the Sin Somros under paragraph one having been revoked, or suspended due to the husband or wife having been relieved from being bankrupt, the property which is the Sin Suan Tua on the date of the order of the Court, or on the date of his or her relieving from being bankrupt shall remain the same as Sin Suan Tua. In case where the Sin Somros has been disposed of, both spouses are liable to pay for the household expenses in proportion to the amount of their respection Sin Suan Tua.
The marriage which is made against Section , Section , Section and Section shall be void. It is only a judgment of the Court that effects the void of the marriage which is made against Section , Section and Section The spouses, parents or descendants of the spouse may apply for a judgment of the Court effecting the void of the marriage. If there is none of the said persons, any interested person may request the Public Prosecutor to apply to the Court for such judgment.
Any interested person may allege or apply for a judgment of the Court effecting that the marriage made against Section is void. In case there is a final judgment of the Court effecting the void of any marriage, the Court shall notify the Marriage Registrar of the matter in order to have it entered in the Marriage Register.
The void of marriage will not create property relation between husband and wife. In case of marriage has been adjudged void, the property possessed or acquired by either party before or after the marriage as well as the fruits thereof remain as that party's property. As for the property jointly earned, they shall divided equally unless the Court deems it proper and order otherwise by taking into consideration the obligation in the family and earnings of both parties as well as their station in life, including all other circumstances.
The marriage adjudged void as being against Section , Section or Section shall not prejudice the right acquired through such marriage before pronouncing the final judgment effecting the void of the marriage by the party who has married in good faith. The marriage adjudged void as being against Section shall not prejudice the right acquired through such marriage before the cause that the maker the marriage void is known to the man or woman. But the said marriage shall not make one spouse become statutory heir of the other and have the right of inheritance to the other spouse.
In case of the marriage adjudged void as being against Section , Section , Section or Section , if one party only acted in good faith, such party may claim compensation. However, if such marriage makes the party in good faith become destitute deriving insufficient income out of his or her property or business which used to be carried on before pronouncing the final judgment to effect the void of the marriage, or before the void of his or her marriage becoming known, as the case may be, that party can also claim living allowance, and the provisions of Section paragraph one and Section shall apply to the claim for living allowances in this case, mutatis mutandis.
The prescription for claiming compensation or living allowances under paragraph three shall be two years from the date of pronouncing the final judgment to effect the void of the marriage in case of the marriage made against Section , Section or Section , or from the day when the void of his or her marriage becoming known in the case of the marriage made against Section In case of the marriage adjudged void, the agreement between the spouses as to which party to exercise the parental power over any child, or either party or both of them to be responsible for the amount of contribution of the maintenance of the child shall be made in writing.
If the agreement cannot be reached, the Court shall make decision on the matter. In making such decision, if the are grounds for depriving that spouse of parental power under Section , the Court may give an order depriving that spouse of the same and appoint a third person as a guardian by taking into consideration the happiness and interest of the child, and the provisions of Section shall apply, mutatis mutandis.
Marriage is terminated by death, divorce or being cancelled by the Court. A voidable marriage terminates upon cancellation decided by judgment of the Court. An application to the Court for cancellation of marriage on the ground of its avoidable shall be made only in the case where the spouses have not complied with Section , Section , Section , Section , and Section An interested person other than the parents or guardian who have given their consent to the marriage is entitled to apply for cancellation of the marriage on the ground of its voidability.
If the court has not cancelled the marriage until both man and woman have completed the age required under Section or if the woman has become pregnant before such completion, the marriage shall be deemed to be valid from the time it was made. A marriage which is made on account of mistake as to the identity of the other spouse shall be deemed to be voidable. The right to apply for cancellation of the marriage on account of mistake as to the identity of the spouse shall be terminated after the lapse of ninety days from the date of marriage.
A marriage is voidable if it is made by the spouses on account of fraud to such an extent that without it the marriage would not have been made. The provisions of paragraph one shall not apply to the case not apply to the case where the other spouse has not known the fraud committed by a third person. The right to apply for cancellation of the marriage on account of fraud shall be terminated after the lapse of ninety days from the day on which the spouse has known or should have known of the fraud, or after the lapse of one year from the date marriage.
A marriage is voidable if it is made by the spouses on account of duress to such an extent that without it the marriage would not have been made. The right to apply for cancellation of the marriage on account of duress shall be terminated after the lapse of one year from the day on which the spouse is free from duress. Where the marriage is voidable on account of mistake as to the identity of the spouse, fraud or duress, only the spouse who mistook the identity of the other, or was induced by fraud or duress to contract the marriage may apply for the cancellation of such marriage.
In case where the person entitled to apply for the cancellation of the marriage has been adjudged incompetent, the person who may apply to the Court for an order effecting an insane person to be an incapacitated person under Section 29, may also apply for the cancellation of such marriage. Where the person entitled to apply for the cancellation of the marriage is an insane person not yet adjudged incompetent, the said person may apply for the cancellation of such marriage but must apply concurrently to the Court for an order effecting him to be an incapacitated person. If the Court gives an order revoking the application for an order effecting him to be an incapacitated person, the Court shall also order revoking the application made by the said person for the cancellation of the marriage.
The order of the Court revoking the application made by the person for cancellation of the marriage under paragraph two does not effect the right of the spouse to apply for the cancellation of the marriage; provided that the spouse exercise his or her right within the remaining period of time. If the remaining period of time is less than six months as from the day on which the order of the Court revoking the application made by the said person for cancellation of the marriage is given, or if there remains no such period, the period of time shall correspondingly be extended to the completion of six months as from the day on which the order of the Court revoking the application made by the said person for the cancellation of the marriage is given.
The marriage made without consent of the persons mentioned in Section is voidable. Where the marriage is voidable on account of having been made without consent of the persons mentioned in Section , only the person who can give the consent under Section may apply for the cancellation of the marriage. The right to apply for the cancellation of the marriage under this Section is extinguished when the spouse has completed the age of twentieth year or when the woman has become pregnant.
The action for the cancellation of the marriage under this Section is barred by prescription after one year from the day where the marriage is known. The marriage which is cancelled by judgment of the Court shall be deemed to have terminated on the day when the judgment becomes final; provided, however, that it may not be set up to the prejudice of the rights of third persons acting in good faith unless the cancellation of the marriage has been registered. The provisions concerning the result of divorce by judgment of the Court shall apply to the result of cancellation of the marriage mutatis mutandis [Ed.
Latin, the necessary changes having been made].
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If it appears that the spouse sued on cancellation of the marriage has known of the ground of the avoidability, such spouse is required to make compensation for the damage to the body, reputation or property of the other arising from such marriage, and the provisions of Section shall apply mutatis mutandis.
If the other spouse becomes destitute due to the cancellation of the marriage under paragraph one and derives insufficient income out of his or her property of business which used to be carried on during the marriage, the spouse against whom the action has been brought is also required to be liable to living allowances as provided in section Divorce may be effected only by mutual consent or by judgment of the Court.
Divorce effected by mutual consent must be made in writing and certified by the signatures of at least two witnesses.
Where marriage has been registered as provided by this Code, divorce by mutual consent is valid only if the registration thereof is effected by both the husband and wife. No action for divorce may be instituted by the husband or wife, as the case may be if such spouse has consented to or connived at the acts under Section 1 and 2 upon which the actio for divorce is based. If the ground of action for divorce under Section 10 has resulted from the act of the other spouse, the action for divorce based upon such ground may not be instituted by such other spouse.
Where the action for divorce based upon the ground under section 8 has been instituted, the Court may not pronounce judgment to effect the divorce if the bahavior of the nusband or wife that causes the bond to have been executed is a minor cause or of no imprtance in relation to peacful cohabitation as husband and wife. The right to institute an action for divorce would be terminated if the spouse entitled thereto has committed any act showing his or her forgiveness to the act done by the other that has caused the right to institute the action for divorce.
In such a case if no order of the Court effecting the insance spouse to be an incapacitated person has yet been given, the said person shall apply to the Court in the same case for an order effecting the insane spouse to be an incapacitated person. The said person may, if deemed suitable, also apply to the Court for giving the order under Section and Section In case where the spouse alleged to be an insance person has not yet been adjudged incompetent, and if the Court deems that such spouse should not be judged incompetent, the case shall then be dismissed.
If the spouse is deemed suitable to be adjudged incompetent but an order to effect the divorce should not yet be given as yet, the Court shall adjudge the spouse to be an incapacitated person and may not give order concerning the gurarian or appointing other person to be guardian under Section while the application for divorce will be dismissed, and the Court may in this connection give an order determinng living allowances.
In case where the spouse is deemed to be insane and should be adjudged incompetent by the Court and the application for divorce should also be granted, the Court shall issue an order n the judgment effectng such spouse to be an incapacitated person, appointing a guardian and allowing the divorce. In case there the Court deems that the ground upon which the claim for divorce is based is not proper to the condition of the incapacitated spouse who is going to divorce the other spouse, ir it is not proper under such circumstances that divorce should be allowed, the Court may not pronounce the judgment to effect the divorce.
In case of divorce by mutual consent, the spouses shall make an agreement n writing for the exercise of parental power over each of the children. In the absence of such agreement or an agreement thereon cannot be reached, the matter shall be decided by the Court. In case of divorce by judgment of the Court, the Court trying the divorce case shall also order that the parental power over each of the children belongs to any party. If, in such trial, it is deemed proper to deprive that spouse of the parental power under Section , the Court may give an order depriving that spouse of the same and appointing a third person as a guardian, by taking into consideration the happiness and interest of the child.
If it appears that the person exercising parental power of the guardian under Section behaves himself or herself improperly or there is a change of circumstances after the appointment, the Court has the power to give an order appointing a new guardian by taking into consideration the happiness and interest of the child.
In case of divorce by mutual consent, an arrangement shall be made and contained in the agreement of divorce as to who, both of the spouses or either spouse, will contribute to the maintenance of the children and how much is the contribution. In case of divorce by judgment of the Court or in case the agreement of divorce contains no provisions concerning the maintenance of the children, the Court shall determine it.
In case of divorce by judgment of the Court on the ground as provided in Section 1 , the husband or wife is entitled to compensation from the husband or wife and other woman or adulterer, as the case may be. The husband is entitled to claim compensation from any person who has wrongfully taken liberties with his wife in an adulterous manner, and the wife is entitled to claim compensation from other woman who has openly shown her adulterous relations with the former's husband.
However, the husband or wife is not entitled to claim compensation if he or she has consented to or connived at the act done by other party under Section 1 or allowed other person to act as provided in paragraph two. If the ground of action for divorce under Section 3 , 4 or 6 has arisen through an act of the party at fault with the intention to make the other party so intolerable that action for divorce has to be entered, the other party is entitled to compensation from the party at fault. The compensation under Section and Section shall be decided by the Court according to the circumstances, and the Court may give an order for a single payment thereof or payment in instalments as may be deemed suitable by the Court.
In case where the person who has to make the Compensation is a spouse of the other party, the share of the property received by the former from the liquidation of the Sin Somros on account of divorce shall also be taken into consideration. In a case of divorce, if the ground for divorce has derived from the guilt of only one party, and the divorce will make the other become destitute deriving insufficient income out of his or her property or business which used to be carried on during the marriage, the latter is entitled to apply for the living allowances to be paid by the party at fault.
The right to claim the living allowances is extinguished if it is not raised in the plaint or counter-claim in the action for divorce. If a divorce is effected on the ground of insanity under Section 7 or on the ground of suffering from a communicable and dangerous disease under Section 9 , the other spouse shall furnish living allowances to the spouse who is insane or is suffering from the disease, according to Section , mutatis mutandis.
If the party receiving living allowances remarries, the right to receive living allowances is extinguished. Rights of action based upon any of the grounds provided in Section 1 , 2 , 3 or 6 , or Section are extinguished after one year when the fact which can be alleged by the claimant has been known or should have been known to him or her. Grounds upon which a claim for divorce can no longer be based may still be proved in support of another claim for divorce based upon other grounds. Where an action for divorce is pending, the Court may, on application of either party, make any provisional order which it thinks proper such as those concerning the Sin Somros, the lodging, the maintenance of the spouses and the custody and maintenance of children.
In case where a marriage has been registered according to law, divorce by mutual consent takes effect from the time of registration. Divorce by judgment of the Court takes effect on and from the time when the judgment becomes final; however, such judgment may not be set up to the prejudice to the rights of third persons acting in good faith unless the divorce has been registered.
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After divorce, the property of the husband and wife shall be subject to liquidation. Upon divorce, the Sin Somros shall be divided equally between man and woman. Where either spouse has made disposal of the Sin Somros for his or her exclusive benefit, or has made disposal thereof with an intention to cause injury to the other, or has made disposal thereof without the consent of the other in the case where such disposal is required by law to have consent of the other, or has wilfully destroyed it, it shall, for the purpose of division of the Sin Somros under Section , be regarded as if such property had still remained.
If the share of the Sin Somros that the other will receive is not complete to what he or she should have received, the party at fault is required to make up for the arrears from his or her share of the Sin Somros or his or her Sin Suan Tua. Upon termination of the marriage, the man and woman shall be liable for common debts equally.
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Back Habitation Contract. Back Servitude Contract. Back Pre-marriage Thai Last Will. Thai Work Permit Business Blog. Thailand Family Marriage Laws. The betrothal contrary to the provision of paragraph one is void. Specific performance will not be granted to enforce the contract. Breach of the contract is established either by conduct inconsistent with the contract most obviously, by marrying another person or by a specific refusal to go through with the marriage. The evidence of the plaintiff in the action must be corroborated. As in this country, it is sufficient if the evidence supports the plaintiff's allegation that the promise was made.
The defences to the action are those which generally apply in contract cases, save to the extent that misrepresentation as to personal character or position may justify a person in terminating the engagement. See, for example, Haynes v. The rules regarding property questions are largely similar but authorities are scanty. The Ontario Law Commission, which investigated this area of the law recommended that the action for breach of promise be abolished.
It was influenced by the experience of the United States, and by the fact that the abolition of the action had also been recommended in England and elsewhere. Of relevance is the statement by the Commission that it recognised. However, this should not be used as an argument for retaining the breach of promise action, which did not efficiently adjust such matters in any event. The Commission feels that it would be anomalous to retain the idea of contractual fault as a bar to the recovery of a conditional gift, if the contractual foundation of the engagement itself is not present.
A second consideration is that where the value of the conditional gift is substantial, the significance of the donor's contractual fault may be grossly disproportionate to the loss he or she sustains. Since some legal requirements govern the property. Moreover, the Commission considered that, where the marriage did take place, any interest of a third person in a conditional gift should thereupon cease.
The Newfoundland Family Law Study , which examined the law relating to breach of promise, recommended that the right of action for breach of promise be abolished but that an action for restitution or deceit should lie in appropriate cases. In Quebec, which is a Civil Law Province, the decisions are divided on the question whether or not a right of action exists in respect of breach of promise of marriage. In , the Committee on the Law on Persons and on the Family 5 made a number of recommendations on this question.
It proposed firstly that no obligation to contract marriage should arise from any engagement or reciprocal promises of marriage. It argued briefly in justification of this proposal that in order to protect the total freedom of consent to marriage, no broken engagement should in itself allow recourse for damages. However, the Committee recommended that an action should lie where the promise to marry was broken by the fault of one of the parties. Article 2 of the Committee's draft Code is as follows:.
However, no indemnity is payable for the loss of any benefits which the marriage might have procured for the plaintiff. This proposal gave effect to a rule which was already adopted by jurisprudence in Quebec. The Committee proposed that any promise that a lump sum indemnity would be paid in the event of a broken promise of marriage should be without legal effect. This represents a change in the existing law. The Committee considered it. Fault considerations would apparently play no part in this context. It should be noted that the proposal extends to gifts from third persons as well as from the engaged parties.
It appeared desirable to the Committee. The action for breach of promise would appear to have been recognised from the earliest times in the United States. The policy grounding the action was expressed in a Massachusetts decision of A deserted female, whose prospects in life may be materially affected by the treachery of the man, to whom she has plighted her vows, will always receive from a jury the attention which her situation requires It is also for the public interest that conduct tending to consign a virtuous woman to celibacy should meet with that punishment which may prevent it from becoming common.
As regards the determination of what constitutes a promise to marry and what evidence supports it, the case law is unsatisfactory. Considerable deference is paid to jury findings on the question. In some cases evidence of sexual relations between the parties has been held admissible to prove the engagement.
The plaintiff's testimony need not as a matter of law be corroborated, although some States 7 have enacted legislation requiring corroboration. In Tennessee statute requires either a written corroboration or proof of the contract by at least two disinterested witnesses. Although ordinarily categorised as an action for breach of contract, there has been some tendency to treat the action for breach of promise as a tort for the purpose of limitation of actions and damages.
Wightman v. Coates 15 Mass. Defences to the action include fraudulent representations or concealment by the other party, insanity at the time of the engagement or the subsequent development of serious illness or disability. Over forty years ago, fourteen States 8 abolished the action for breach of promise.
The reasons for abolition included the following:. The power to award punitive damages had, in the view of many commentators, been used by juries excessively;. The action consequently often took on the aspect of a blackmail operation sanctioned by law. The constitutionality of the abolition statutes was challenged in a number of States on the ground that they deprived parties of a legal remedy for injuries and wrongs to their person, property, or reputation.
The Illinois legislature responded by restricting the scope of the action by reducing the limitation period to one year. It also provided that no punitive damages could be awarded. The legislation withstood constitutional challenge. If the plaintiff has been married already, this must be considered in mitigation of damages. If the defendant is over sixty years of age, proof of damages is limited to actual financial loss and punitive damages may not be awarded.
Strict rules apply regarding corroboration of the plaintiff's evidence. In Missouri, no punitive damages may be awarded. In Maryland, the action may be taken only where pregnancy has occurred in the course of the engagement. In most of the States that have abolished the action for breach of promise, it is not permissible to bring an action for assault based on fraud regarding matrimonial intentions.
As regards property questions, the criterion of unjust enrichment is generally applied, whether or not the action for breach of promise has been abolished. The unjust enrichment criterion permits account being taken of the conduct of the parties and of the circumstances so as to allow for an overall adjustment of gains and losses. In other words, recovery of all gifts is possible regardless of who is at fault in terminating the engagement. In New York, after the abolition of the action for breach of promise in , a number of decisions held that there could be no recovery of conditional gifts.
The New York Law Revision Commission recommended amending legislation to make express provision, at the discretion of the Court, for property or money transferred in contemplation of marriage. There was no legislative response until when it was enacted that there should be a right of action. Finally, it should be mentioned that in the background to the question of breach of promise in the United States is the still widespread retention of seduction legislation, whereby such conduct may be punishable as an offence except in certain cases, some of which relate to marriage or even the promise of marriage:.
There are widely varying rules as to whether the marriage or offer to marry which will serve as a defense to a seduction prosecution must occur before arraignment or pleading, before trial, before the jury is sworn, before the jury verdict, or before judgment, or whether it will be sufficient if it takes place after conviction.
In all cases the basic purpose seems to be the same; the question at issue is, in diplomatic terms, the amount of 'brinkmanship' in which the accused is allowed to indulge. The law relating to breach of promise in South Africa bears some similarity to that in this country, but there are some striking differences.
Paulsen, Wadlington and Goebel, Domestic Relations , p. No formalities are necessary to make a contract to marry. In general, capacity to enter into a contract of engagement coincides with capacity to marry.
Thus, persons within the prohibited degrees of relationship may not sue or be sued for breach of promise. See H. Insanity, intoxication, force, intimidation, mistake, fraud and misrepresentation will all constitute good defences to a breach of promise action. Prior to the Marriage Order in Council of the Cape Colony of , a contract to marry could be enforced by an order for specific performance. Since then, damages have been the only remedy.
Where the defendant has seduced the plaintiff under promise of marriage, she can claim damages for seduction as well as for breach of promise. Whilst damages for breach of promise may be awarded against the estate of a deceased person, recovery will be limited to the plaintiff's actual pecuniary loss. A presumption exists in favour of moral propriety between the couple which might, in times of changing moral standards, conceivably result in injustice to the defendant. Penalty clauses in engagement contracts are against public policy.
The law relating to gifts between engaged persons is somewhat complex.
Gifts may be divided into three categories. The first consists of arrhae sponsalitiae , which are tokens or earnests of the donor's sincerity, with the understanding that they are to be forfeited by the donor if he breaks his promise. The second category consists of gifts made in contemplation of marriage. Any permanent gifts of value, such as a house or farm, an insurance policy or furniture, will be presumed to have been made in anticipation of marriage, if made during the engagement. The third category consists of out-and-out gifts of small value, which engaged persons frequently give each other as takens of affection.
All gifts other than gifts in the third category that have been lost, consumed or alienated must be returned if the engagement is terminated by mutual consent, death or for some reason such as insanity or impotence which does not involve fault on the part of either person. Presents given before an engagement have to be treated as unconditional out-and-out gifts, in the absence of a contrary intention.
It was a typical case of innominate contract, but wider in scope, e. If casus made the counter render impossible, the debtor was released in classical law and there was in general no right of recovery of what had been given. See William W. Buckland, Manual of Roman Private Law , p. In South Africa once the marriage has taken place, engagement gifts become subject to the ordinary rules regarding the property of the donee.
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The arguments in favour of abolishing the action for breach of promise may be summarised as follows:. The risk that a girl whose engagement has been broken will thereafter be shunned by potential marriage partners may well have lessened greatly in recent years;. As has been observed,. The possiblity of a legal action may have the effect of encouraging persons with less than a full matrimonial commitment to marry. This might result in the marriage being an unsuccessful one.
Most agreements within the family are not regarded as legal contracts, so that if the breach of promise action is abolished the law as to agreements between. In Balfour v. Balfour  2 K. They are not contracts Agreements such as these are outside the realm of contracts altogether. See further on domestic agreements Chitty on Contracts vol. The rule that the plaintiff's evidence must be corroborated should normally protect the defendant sufficiently. The fear of blackmail is one that affects many areas of the law, but the solution is not to abolish the right of action.
Potential defendants must use their common sense and avoid placing themselves in awkward situations where they are not really serious or have not finally made up their minds.
The jilted party may well have suffered financial loss as a result of the engagement or may have foregone other opportunities of marriage. A remedy in damages should be available in such cases. Having weighed these arguments on their merits, the Commission recommends that the present right of action be abolished.
In place of the action, it recommends that there be enacted provisions specifying the rights of the parties to the engagement and others in respect of certain property matters. The recommendations that follow are based on the premise that fault should be irrelevant in determining appropriate rules in relation to gifts. The question of gifts from third persons is of significance in a larger context than breach of promise actions.
Alternatively a dispute between the parties after marriage might involve questions of ownership of specific gifts from third persons. Two views have generally been expressed regarding what intention should be presumed from the action of the third person donor. One approach is to consider that the party who is a relation or friend of the donor is the intended sole beneficiary; the other approach is to consider that both parties are intended to benefit jointly. It is recommended that there should be a presumption of intention to benefit the parties jointly.
It is often the case that the donor is a friend of both although he or she has known one longer than the other. It seems artificial in such cases to require the Court to infer, in the absence of evidence to the contrary, that only one party was the intended donee. Where, however, there is solid evidence of an intention that the gift should be the property of one spouse only, effect should be given to that intention. The Commission recommends that a specific provision be enacted making it clear that, in the absence of a contrary intention, wedding presents from third persons are to be returnable if the marriage does not take place.
This would appear to be the present law, and seems to be the sensible solution. The Commission believes that the law should remove any consideration of fault from the determination whether such gifts are returnable. If a gift is conditional on the wedding taking place it should be returnable; not otherwise. However, it is desirable to make certain presumptions to assist in the determination of whether a gift is conditional or unconditional.
The Commission recommends that any gift made by one party to an intended marriage to the other should be presumed, in the absence of evidence to the contrary, to be conditional if the engagement terminates for any reason other than the death of the donor and therefore returnable if the marriage does not take place.
The Commission further recommends that the rule applicable to gifts generally should apply to engagement rings also. The solution adopted in England in regard to engagement rings was a compromise one arising out of the desire to ensure that a jilted woman should be free to do as she wished with the ring. The legislature conceded that to give effect to this sentiment would be to reinstate the issue of responsibility for the termination of the engagement. The best approach to the resolution of property questions between former parties to an engagement would appear to be to reduce complications as far as possible whilst protecting one party from unfair treatment by the other.
In making a determination the Court should not have regard to the question of the responsibility of either party for the termination of the engagement. Firstly , the issue of who was responsible for the termination of the engagement may not be considered by the Court. Where one of the parties has behaved despicably or dishonourably as, for example, by committing acts of violence on the other party, or by acts of fraud or deceit moral or financial , such as seduction on the understanding of marriage, the Court should be able to give consideration to this fact.
It would be probable, however, that in the normal case the question of fault would not enter into consideration very much, if at all. Secondly , the Court could make an order where one party has been unjustly enriched by the other. Not every case of loss sustained by one party or of gain made by the other would give rise to judicial intervention.
Whilst he has not gained a positive sum of money directly from her, he has benefitted indirectly, by not having paid sums of money that he might reasonably be expected to have paid. See pp. Thirdly , the Court would not be entitled to make an order for compensation or restitution by either party to the engagement to any third person, such as the girl's parent or friend, who may be out of pocket, except where there has been substantial and unjust enrichment. In the normal case of expenditure by a third person, that person enters into the transaction with his or her eyes open to the risk of the marriage not taking place.
It would appear inadvisable to expose an engaged party to liability otherwise than to the other party and to third persons by whom he or she has been substantially and unjustly enriched. An important question must be resolved with regard to the proposed provision. Should it replace or be in addition to the operation of a the law of trusts and b the law of tort such as negligence or deceit? In most cases where an engagement has been terminated, if a party feels aggrieved the proposed provision based on unjust enrichment would be likely to prove the more attractive.
Rather than tie down the development of the law in a manner that might result in unforeseen repercussions in other areas of the law, it is considered that the best course would be to do nothing in these areas. Section 2 of the General Scheme of the proposed Bill on p. The Commission considers that the problem of a person who enters into a void marriage as a result of a misrepresentation by a married person that he or she is unmarried see pages 2 and 9 supra should be dealt with in the Commission's recommendations on nullity rather than in the present context.
And there would be little point in amending the existing law in the legislation now proposed so as to cover the situation that arose in Shaw v. Shaw  2 K. In that case, Lord Justice Singleton explaining the law in England said at p. The Commission has in mind in this connection expenses incurred in a journey from a foreign country made by the jilted party while the agreement to marry was still in force. With regard to gifts from third persons to parties to be married, there should be a presumption of intention to benefit both parties jointly.
Provide that an agreement between two persons to marry one another that has been entered into after the first day of January shall not have effect as a contract giving rise to rights in law and that no action may be brought for breach of such an agreement, whatever the law applicable to the agreement. Provide that where an agreement to marry is terminated, any rule of law relating to the rights of husbands and wives in relation to property in which either or both has or have a beneficial interest applies in relation to any property in which either or both of the parties to the agreement to marry had a beneficial interest while the agreement was in force, as it applies in relation to property in which a husband or wife has a beneficial interest.
Provide that where either party to an agreement to marry makes a contribution in money or money's worth to the purchase or improvement or maintenance of any property including any payment in respect of rent or in respect of a mortgage in which or in the proceeds of sale of which either or both of them has or have a beneficial interest, the party who makes the contribution is, if the contribution is of a substantial nature or increases the value of the property and subject to any agreement to the contrary between them, to be treated as having then and thus acquired 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, of such an extent as may in all the circumstances appear just to the Court before which the question of the existence or extent of the beneficial interest arises.
Provide that where an agreement to marry is terminated, either party to the agreement or any person concerned may apply to the Court to determine the rights of the parties in relation to property in which either or both had a beneficial interest while the agreement was in force although the property has or may have ceased to be in the possession or under the control of either such party:. Provide that the Statute of Limitations is amended by the addition of a section on the following lines after section Provide that any proceedings under the Act may, if either party so requests, be heard otherwise than in public.
Public opinion might oppose such a detailed examination of private affairs. No engagement Either a contention that there never was an engagement or that it has been lawfully terminated. No breach A contention that the parties are already married of importance in Scotland, where there may still be irregular non-ceremonial marriages or, more usually, that the defender is willing to marry the pursuer but that either the pursuer has broken off the engagement or that a postponement is reasonable. Justification Liability for breach of promise will arise only where the defendant wrongfully failed to implement his promise.
Mora delay and acquiescence There are dicta to the effect that an action for breach of promise must be brought within a reasonable time. The rule regarding corroboration exists in all States except Victoria. The judicial approach towards the quantum of damages is one of moderation. The action for breach of promise has been abolished in South Australia. The plaintiff's testimony must be corroborated by some material evidence. The rule that a promise to marry made by a married person is void is strictly applied.
Related A Fraudulent Betrothal
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