Broken Engagements: Breach of Promise in Marriage

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A Short History of the Consequences of Breaking Off An Engagement in England

The idea of being sued in court for changing your mind after promising to marry someone may seem quaint today.

After all, couples break off their engagements, or one jilts the other, and it is all put down to that mystery that is the human heart.

So it may come as a surprise to learn how recently the right to sue was taken off the statute books.

We may think the idea of suing for breach of promise has its origins in the Middle Ages, when a man might ‘plight his troth’ – that is, pledge or vow the truth of his intention to marry.

In fact in the Middle Ages the only legal remedy that might be available to someone who had been jilted was if they had given a gift in contemplation of marriage. Then they could sue for its return.

Beyond that, breaking a promise to marry someone was a purely ecclesiastical matter and there were no financial consequences for breaking that promise.

What the church could do was to ‘admonish’ someone who broke his or her promise to marry and it is hard today to understand just what effect being admonished would have on a person or their reputation.

Things changed in the 1600s, in the reign of Charles I, when breach of promise of marriage evolved in the ordinary common law courts in that peculiarly English way that remedies evolved, which was bit by bit, an inch at a time, and trying at all times to avoid any hasty, sweeping principles that could trip up the courts at a later date.

As they evolved, breach of promise cases were treated like any other contract – that is, just like a contract to buy or sell cotton or potatoes.

That meant that in the same way that a merchant was not obliged to disclose all the faults and flaws in his goods, so the parties to an engagement did not owe one another any special duty to disclose all relevant facts.

But if the contract was broken and one side failed to honor his promise, the other could sue for damages for loss of the benefit that would have come from the contract had it been honored.

It’s 1969
The year is 1969. The Beatles have played their last public performance, which took place on the roof of Apple Records. Neil Armstrong has walked on the moon.

And the Law Commission, charged in 1965 by the Engish parliament with reporting on things that ought to be changed in English law, have reported on breach of promise in marriage.

Under a heading in the Law Commission’s First Programme that included “miscellaneous matters involving anomalies, obsolescent principles or archaic procedures” they singled out certain matters that, as they described it “seemed to rest on social assumptions which are no longer valid.”

In 1966 they started to circulate ideas and canvass opinions from lawyers and judges and from organizations that ranged from The Fawcett Society (which campaigns for equality between women and men in the UK on pay, pensions, poverty, justice and politics) to the Catholic Marriage Advisory Council.

The Law Commission published the results of their enquiries, and broadly, the lawyers wanted keep the statute and the other groups did not.

So what was the state of breach of promise over the 100 years before the Law Commission looked into it?

A Brief History of Breach of Promise Actions
In the fifty years up to 1900 there were approximately one thousand breach of promise actions that ended in court with a trial with judgement and damages awarded by a jury.

More cases were started but settled before they got to court.

Until 1869 the court heard evidence from any and everyone except the parties themselves, for until a change in the law in 1869, parties to a breach of promise action were forbidden from giving evidence in court.

Which did not stop the newspapers from printing the details of the evidence that was given by other witnesses, and breach of promise cases were a prime source of public entertainment.

They were so popular that several melodramas and comedies were written on the subject, centering on ‘the trial’. Dickens wrote about poor misunderstood Mr Pickwick being sued for breach of promise by his housekeeper.

In the breach of promise cases that came to trial, the lawyers for the defendants, nearly all men, were usually reported as describing the plaintiffs as scheming, avaricious gold-diggers.

The lawyers for the plaintiff women described the situation differently. Women had very little economic independence. They could not work in many of the professions; they could not vote or even be called for jury service.

So a woman who trusted a man and became engaged to him lost all chance of security if he jilted her. Her chance of finding a secure future was more or less ruined by now being cast-off.

In more than a quarter of the cases that came before the courts the parties had been intimate, and that presented the the all-male juries with a dilemma because the ideal of injured womanhood didn’t sit easily with the idea of a real flesh and blood woman having sex with the man who jilted her.

Nonetheless, unless the woman was proven to have loose morals she had a very good chance of success and the vast majority succeeded.

War and Change
Two World Wars changed the face of the country forever. Women had twice been recruited for essential war work while the men were off being blasted to bits.

By the 1950s the cases were reduced to a trickle, and by the time the Law Commission reported, breach of promise was obsolete. The law abolishing it was passed in parliament in 1970 and became law in 1971, and breach of promise came to an end in a world that was very different from the one in which it began.

The Act that abolished the action for breach of promise is the Law Reform (Miscellaneous Provisions) Act 1970 – a short Act of just seven paragraphs and one schedule.

References
The Law Commission Report Vol 26 October 14, 1969
‘Promises Broken: Courtship, Class, and Gender in Victorian England’ G.S. Frost Virginia Press 1995
Postcard images: Printed in Germany for the English market in the 1930s

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