Terms of Engagement – What to consider when getting engaged

Another Valentine’s Day has been and gone and, love it or loathe it, couples across the globe use this day to show their love for one another with romantic gestures and heart-themed gifts.

Valentine’s Day is more than just the teddy bears and chocolates. The month of February is one of the most popular months for couples to get engaged. While this is, of course, a happy and exciting time, as lawyers we take an objective and realistic view of engagements and so here we look at some of the key considerations couples should know about when popping the question, or saying yes.

Is an engagement a binding contract?

A promise to marry, say by getting engaged, is essentially a contract. This was seen many years ago as legally binding and people could, and would, sue if that promise of marriage was broken. Interestingly, Ol’ Blue Eyes himself, Frank Sinatra, was arrested in 1938 for adultery while ‘under the promise of marriage’, although he spent less than a day in jail.

This is not the case today and in Jersey the right to bring an action for breach of promise of marriage was abolished by the Law Reform (Miscellaneous Provisions) (Jersey) Law 2003), although certain parts of the world still do award damages for breach of contract.

What about the engagement ring?

With tradition suggesting between one and three months’ salary should be spent on an engagement ring, ownership of the gifted ring is a hotly debated topic if an engagement is called off. This is perhaps especially important if the ring offered has a strong family connection to the proposer.

In Jersey law the position is clear. Under Article 3 (2) of the same Miscellaneous Provisions Law above, the gift of an engagement ring is presumed to be an absolute gift. This presumption can only be displaced if it can be proved that the ring was given on the expressed or implied condition that it should be returned in the event of the relationship ending.

Pre-nuptial agreements

When it comes to other assets you each hold, consideration should be given for what happens if things go wrong. While it may seem like your relationship will stand the test of time, it is always good to be prepared for the unforeseen.

Pre-nuptial agreements are often seen as a necessity for the rich and famous, and not your everyday person. However, we are seeing more and more enquiries about pre and post nuptial agreements. This is in part because of societal changes, as people get married later in life when they each have already built up assets of their own.

Pre-nuptial agreements are a practical way to protect and preserve your wealth in the event of a relationship breakdown. These agreements are commonly used where there is a family business, a trust or significant inheritance prospects. They are also useful in second and subsequent marriages or civil partnerships and especially where one person has a child or children from a previous union.

An agreement can also be made after you have tied the knot – a post-nuptial agreement. This normally occurs in situations where it has not been possible, due perhaps to time constraints, to finalise a pre-nuptial agreement before the nuptials.

A pre-nuptial agreement requires careful drafting and expertise if it is to stand the best chance of being upheld by a court, so expert advice should be sought.

While not yet legally binding, a pre-nuptial agreement is taken into account by the court. Parties are expected to uphold their bargain unless the result would be unfair. As such, they represent the best insurance policy to protect wealth where marriage or civil partnership is in contemplation.

Final words

Whilst we all want our relationships to go the distance and enter into an engagement or marriage with intentions of it being a lifelong commitment, there is always a chance that things may not work out.

Couples may therefore want to consider a pre-nuptial or post-nuptial agreement which may assist in the event of a relationship breakdown. If you would like further information on pre & post nuptial agreements, our Family Law team offer a free 30 minute call to answer your questions.