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What Are the Requirements For a Valid Engagement

What Are the Requirements For a Valid Engagement

The Engagement

Introduction

An engagement is a contract between two people to marry each other on a specific or determinable date.

An engagement is completed by means of an offer and acceptance.  It is not necessary for the Parties to be in each other’s presence when the engagement is concluded as the engagement can be concluded by representatives of the Parties.

The contract can be done in writing or it can be concluded upon orally.

1. Consensus

To enter into a valid engagement, Parties must have consensus (be in agreement) and the normal rules regarding consensus apply.  If misrepresentation, undue influence or pressure takes place, then the engagement is voidable.

2. Mistake

Should there be a material mistake, then there is no consensus and consequently no engagement contract.  Should one of the Parties view the promise to marry as a joke, then this material mistake will cause the engagement to be void and the Party will have a claim for damages on the basis of breach of contract.

3. Misrepresentation

When one of the Parties to the engagement makes a false representation to the other Party and the misrepresentation is material, then the innocent Party might claim that the engagement is voidable. The misrepresentation does not have to be expressed, and can be tacit.

If the misrepresentation seriously jeopardises the possibility of achieving a happy and harmonious marriage, then it will in all likelihood be viewed as a material misrepresentation.

The misrepresentation can be met by omission, i.e. where one Party fails to speak out where there is a duty to do so.

4. Capacity

The Parties must be Majors (18 years of age or older), to get engaged and if they have not reached the age of 18 then they have to obtain consent from their Parents or Guardians.  A Court can also grant an Order authorising a Minor to get married.  A person that does not have the capacity to act due to mental illness cannot become engaged.

5. Lawfulness

The Parties must be unmarried before they can get engaged. 

6. Possibility of performance 

The Parties, at the time of getting engaged, must be in a position to conclude a Civil Marriage with each other.  If they are, for example, within the prohibited degrees of relationship they will not be able to get engaged.

Martin Vermaak
Director