Breach of promise of marriage

Abstract

INTRODUCTION Courting and the decision to get married were significant events in the lives of New Zealanders from the pioneer period right through to today. Yet little is known about what the norms of courtship were and how people chose their marriage partners, especially ln the nineteenth century. There are many questions surrounding this process still to be answered. For example how long was the average courting period? How important were family expectations? Were love matches common or was the decision to marry purely an economic one? Did men and women view the process in the same way? These questions assume significance because the family has always been the foundation of New Zealand society. How people chose the marriage partners with whom they would build a family is an interesting historical question. The aim of this research essay is to study engagements which did not reach their natural conclusion, those that broke down before the couple got to the altar. Because of the lack of readily available sources on broken engagements this will be a study of those extreme cases when the person who had been jilted sued their ex-fiance for breach of promise of marriage. While this is only one facet and an unusual one at that, of the courtship and marriage process, such a study focusing as it does on a particularly sensitive area, can provide insights into the social values of New Zealanders.

Until the Domestic Actions Act was passed in October 1975 an agreement to marry, that is an engagement, was a legally binding contract. The legal remedy open to a jilted fiancée was an action for breach of promise of marriage. This was not a remedy to compel the reluctant suitor into marriage, but rather its aim was to provide monetary compensation to the wronged plaintiff. A common law action, the right to sue for breach of promise of marriage developed in England in the seventeenth century when betrothal formed an integral part of the marriage. The earliest cases were brought to recover money paid on the faith of a promise of marriage after one party had broken the contract. Later cases sought damages based on monetary compensation for the loss of the marriage and for the plaintiff's injured feelings. This is the tradition of breach of promise of marriage which was imported to New Zealand with the English legal system.

There are some difficulties locating breach of promise cases. As there is no list of them to provide an easy reference point many of the cases discussed here were found by reviewing legal literature. This method has limitations in that because breach of promise is a common law action it has not been widely affected by legislation. Reviewing the case law provided a few more cases and ensured that the legal aspects of breach of promise are able to be fully covered. To provide a more detailed account of these cases, one which does not concentrate on the legal aspects, newspaper accounts of the proceedings have also been used. Further to this other breach of promise cases were located in newspapers providing some cases which have not necessarily been significant ln the legal development of this type of action. Where possible local newspapers have been used. These accounts were supplemented in many of the cases by accounts in New Zealand Truth, which provided more detailed, if more sensational, coverage of the court action. This was especially useful in the early cases but by the time A v. B came before the court in 1972 the paper did not cover breach of promise cases. Generally, because these cases became public spectacles, coverage of them ln the newspapers was comprehensive. This has not escaped the notice of the legal profession, Inglis noting ‘newspapers have not been slow to exploit the dramatic possibilities of these actions, and few receive less than … prominent publicity’.

Such cases were certainly not commonplace events in New Zealand. The Torts and General Law Reform Committee noted, in their 1968 report on breach of promise of marriage, that the information they had, stated that only 5 such actions had been heard in the four main centres in the decade prior to September 1966. About 25 other actions had been commenced but these were settled or for some other reason did not reach the trial stage. Ten cases (including counter-cases) will be discussed in this essay, spanning the period of 1876-1975. These cases reflect the fact that throughout the century the norms of society and thus courtship processes changed significantly.

The legal background to the action of breach of promise of marriage is detailed ln Chapter One. This includes a summary of both statute and case law as both were instrumental ln shaping the legal aspects of the action. While case law seems to have been the predominant influence in how the courts handled breach of promise cases at times changes in the statute law had a significant impact. This is illustrated in Chapter Two by the case study of Hughes v. Shand a case heard in 1876 after changes to the evidence laws. Two other cases are studied in this chapter, both dealing in part with the impact of the changes to the evidence laws and the effects this had in practice. Raddon v. Rockett, a case which embodies many of the elements that breach of promise legislation was aimed at protecting women against, is the subject of Chapter 3. Three cases which set precedents in New Zealand because they were deemed to be illegal by the judiciary, are the subject of Chapter 4. Chapter 5 documents the process of abolishing the breach of promise action which began in 1968 and culminated with the Domestic Actions Act in 1975. The Conclusion examines whether the breach of promise action was fair and effective legislation, or whether it was based on the proposition that '...women ... not only did but should have a status inferior if not servile to men.'