At Family Law in Partnership we appreciate that as family lawyers, mediators and family consultants we meet, to a large extent, a self-selecting group of people. But the number approaching us with tales of woe about their broken engagements is alarming. The result is not only the anguish and upset of a broken engagement but also a potentially unpleasant situation as regards wedding expenses incurred. In this blog James Pirrie, a Director at Family Law in Partnership Ltd, explores the legal position when things don’t quite go as planned and the wedding is called off or the marriage ends prematurely.
As the great day draws near, the spend accumulates and for many couples the spend will represent a significant proportion of their assets. Often these costs are met in a disproportionate way by the couple. Engagement and wedding gifts to the couple are made on the assumption of a successful marriage but without any clarity as to what happens if the marriage falters after a short time or never takes place at all. We would never make this level of financial commitment in other spheres of our lives without clarity about what would be done if something happens yet we are unaware of couples routinely taking the sort of basic precautions that we discuss below.
It is a reality that sadly relationships do collapse either before the wedding or within a short period afterwards. Perhaps this is because the commitment was made too early and before the relationship was ready to bear the stress of the preparations and the roller-coaster of emotions that the celebrations create. It is a tiny minority but, however rare, we all know that can lightning strike and you will have to decide whether you are going to ignore that fact – or be comfortable after the event with not having taken protective measures, when there are only limited ways in which the financial situation can be made right again.
In the swamp of reactions that follow a broken engagement, questions are bound to arise as to sharing out more fairly all the costs and financial consequences. Clients approach us saying “well surely an agreement to marry is a contract and when my ex pulled out, it is right that they pick up the costs – or at least go halves with all that I invested financially in the big day?”
Well … no, actually, as a little-known statute from 1970, the Law Reform (Miscellaneous Provisions) Act 1970 makes absolutely clear:
1 Engagements to marry not enforceable at law
- An agreement between two persons to marry one another shall not under the law of England and Wales have effect as a contract giving rise to legal rights and no action shall lie in England and Wales for breach of such an agreement, whatever the law applicable to the agreement.
A recent blog written by Family Law in Partnership associate Carla Ditz entitled ‘Calling it off – broken engagements and who keeps what’ sets out the scant rules of financial entitlements under the general law, many of them vague and circumstance-dependent, all going to show that instead of clear rules we have a minefield. A pre-nuptial agreement could cover the issue. But if not dealt with specifically or if there is no pre-nuptial agreement, then the claims that would arise at divorce are unlikely to focus on a careful sorting out of who paid what for the wedding. And the return of gifts is always a contentious issue.
So, if you are seeking to recoup monies in this testing situation, you are usually going to need to find your legal arguments elsewhere. Ideally this will be a properly negotiated contract that will make clear the obligations and circumstances:
Your agreement to share the costs of the wedding equally
Identify the costs
Ideally it might attach your wedding budget to show what is encompassed within those costs (but make it clear that these are simply the categories of spend rather than defining the actual amounts)
Identify the circumstances
It would clarify an agreement to share these costs in whatever proportion (say equally) and clarify an agreement to “reckon up”
– Within a certain period
– If the marriage is called off [by either party] [by the person who has contributed less]
Note that defining who called off the wedding or ascribing responsibility for it is a notoriously difficult concept … it may be better to simply have the agreement to share the costs if asked within a certain period of the wedding. The claim does not need to be pursued.
Clarify which gifts get returned and in what circumstances.
However sensible, many couples will not go as far as this and this means that they are only going to be able to get a claim off the ground if they can show:
- A clear set of intentions; and
- Detrimental reliance (in other words, where a fiancée, for example, has deliberately altered her actions in reliance upon a representation made by her fiancé and which would significantly disadvantage the fiancée should her partner contradict such representation).
When considering the expenses incurred (or to be incurred) for the big day, it is helpful to set out your intentions as to how these costs are to be shared (if at all). Whilst the costs may initially fall to one party and their family, it maybe that these costs ought to be shared should things not turn out as planned. Setting this intention out in an email would provide clear indication of the thought process and intention which might later be used as evidence on which to base a claim.
Gifts are given in contemplation of a marriage and as far as the donor is concerned, there is usually no reason to expect that marriage will not go ahead or indeed endure. Where a significant financial gift (or gift of significant value) is given to the couple, the donor might feel that it would be appropriate for that gift to be returned if things do not go as planned.
Whilst better than nothing, writing a note to the happy couple stating that the gift is indeed given to both parties in anticipation of their wedding and to help towards many a happy life together may assist but could be construed as being insufficiently precise. It is simply very hard to make clear that return is expected if the marriage breaks down without ever referring to the marriage end. For some that is too uncomfortable a step, which is why sadly, we are likely to have people continuing to contact us. That alone means that perhaps this is something that we need to learn to become more comfortable talking about.
At Family Law in Partnership we have an award-winning team of specialist family lawyers, mediators, arbitrators and family consultants. Our aim is to make the family change experience better so our clients can successfully move forward with their lives. Our comprehensive practice covers both traditional and alternative methods of dispute resolution including litigation, solicitor led negotiation, mediation, arbitration and the collaborative approach. Contact any of our talented team of divorce and family lawyers for advice on E: firstname.lastname@example.org or T: 020 7420 5000.