Law Reform (Miscellaneous Provisions) Act 1970

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1. Engagements to marry not enforceable at law.
2. Property of engaged couples.
3. Gifts between engaged couples.

5. Abolition of actions for enticement, seduction and harbouring of spouse or child.

6. Orders for maintenance of surviving party to void marriage from estate of other party.

An Act to abolish actions for breach of promise of marriage and make provision with respect to the property of, and gifts between, persons who have been engaged to marry; to abolish the right of a husband to claim damages for adultery with his wife; to abolish actions for the enticement or harbouring of a spouse, or for the enticement, seduction or harbouring of a child; to make provision with respect to the maintenance of survivors of void marriages; and for purposes connected with the matters aforesaid.

General Note
This Act abolishes some ancient causes of action relating to marriage and the family which date back to feudal times, when marriage was primarily a property deal and a wife and children were part of a man's possessions.

The common law action for damages for the tort of criminal conversation was abolished in 1857, but survived in the divorce jurisdiction as a petition for damages for adultery per se, and as part of the claim in a petition for dissolution on the ground of adultery. With the increasing freedom of women and the equality of the sexes in sexual matters the claim became anachronistic and, as the sum awarded was in the discretion of the judge following archaic precedents, injustice was liable to result.

The torts of enticement, seduction and harbouring were even more primeval, and have rarely given rise to claims in recent years: see Devlin J. in Winchester v Fleming [1958] 1 Q.B. 259 and Mayne & Macgregor on Damages, pp. 774-935.

[The Law Commission recommended abolition of all these claims (Law Com. No. 25, paras. 99 to 101).] Thus the old action on the case of quod servitium amisit has finally disappeared, save for the very limited claim for loss of consortium.

Breach of promise actions, which are abolished by s. 1, gave rise to more difficulty. Although generally recognised as the province of the gold-digger and blackmailer, some innocent women would undoubtedly suffer if the action were to be abolished. The liberation of the magistrates' court from financial limits gave the pregnant fiancée an adequate remedy for actual loss in affiliation proceedings. But the position of the innocent woman, entering into a marriage void because of the man's undisclosed former marriage, would, on his death, intestate or otherwise, be in a deplorable position if she could not proceed against the estate for damages for breach of promise: see Shaw v. Shaw [1954] 2 Q.B. 429. Following the recommendations of the Law Commission (Law Com. No. 26) the action has been abolished, but provision is made (s. 6) for the survivor of any void marriage to be treated as a dependant for the purposes of the Inheritance (Family Provision) Act 1938 (c. 45).

The problem of property transactions entered into by the parties to an engagement to marry are dealt with by putting them in the same legal position as matrimonial disputes and by making proceedings under s. 17 of the Married Women's Property Act 1882 (c. 75), available (s. 2). Recovery of gifts conditional on marriage is unaffected by the circumstances of the break-up of the engagement (s. 3).

The Act received the Royal Assent on May 29, 1970, and comes into force on January 1, 1971.

For parliamentary debates, see H.L. Vol. 309, col. 996; Vol. 310, col. 717; H.C. Vol. 792, col. 1935; Vol. 799, col. 891.

Scotland and Northern Ireland
The Act does not extend to Scotland or Northern Ireland (s. 7 (4)).

1.-(1) 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.

(2) This section shall have effect in relation to agreements entered into before it comes into force, except that it shall not affect any action commenced before it comes into force.

Subs. (1)
This section does away with the action for damages for breach of promise of marriage (see General Note).

The agreement to marry is removed from the general law of contract. No longer is such an agreement bound by the same rules as a contract of employment; it is relegated to the same position as any simple domestic agreement made between husband and wife, which the law regards as unenforceable since it is presumed that there was no intention to create a legal relationship with legal consequences (see Balfour v. Balfour [1919] 2 K.B. 571).

The position of a woman who enters into a void marriage on the implied warranty of the "husband" that he is free to marry and thereby suffers loss (as in Shaw v. Shaw [1954] 2 Q.B. 429) is to some extent secured by the provisions of s. 6.

Compensation for pregnancy must henceforth be sought in affiliation proceedings is the magistrates' courts. Since the Maintenance Orders Act 1968 (c. 36) removed the financial limits on such orders, the injured fiancee can now obtain, in theory at any event, an order to cover her full expenses incidental to the birth as well as adequate maintenance for the child. But these are only special damages, in effect: the magistrates can make no award for general damages, for injured feelings, or loss of reputation and matrimonial prospects, such as were recoverable in the action at common law tried by a jury.

2.-(1) Where an agreement to marry is terminated, any rule of law relating to the rights of husbands and wives in relation to property in which either or both has or have a beneficial interest, including any such rule as explained by section 37 of the Matrimonial Proceedings and Property Act 1970, shall apply, in relation to any property in which either or both of the parties to the agreement had a beneficial interest while the agreement was in force, as it applies in relation to property in which a husband or wife has a beneficial interest.

(2) Where an agreement to marry is terminated, section 17 of the Married Woman’s Property Act 1882 and section 7 of the Matrimonial Causes (Property and Maintenance) Act 1958 (which sections confer power on a judge of the High Court or a county court to settle disputes between husband and wife about property) shall apply, as if the parties were married, to any dispute between, or claim by, one of them in relation to property in which either or both had a beneficial interest while the agreement was in force; but an application made by virtue of this section to the judge under the said section 17, as originally enacted or as extended by the said section 7, shall be made within three years of the termination of the agreement.

GENERAL NOTE
This section applies the law relating to matrimonial property to property disputes between parties who have broken off their engagement. If the action for breach of promise had been abolished without some such provision, engaged couples who entered into property transactions would have been in the same legal position as strangers if they failed to marry: that is, a resulting trust would arise and their beneficial interest would be in a proportion to their respective financial contributions. If they are treated as husband and wife, the court may make such order as is just and will usually award them a half share each in the absence of any agreement to the contrary (see Ulrich v. Ulrich and Felton [1968]1 W.L.R. 180). Contributions to improvement of property will also give a beneficial interest to the contributor, applying s.37 of the Matrimonial Proceedings and Property Act 1970 (c.45) (and evading the effect of the House of Lords decision in Pettit v. Pettit [1969]2 W.L.R. 966).

Subs. (1)
This subsection puts the parties to a terminated engagement in the same position vis-à-vis any property to which either or both parties had any interest during the time of the engagement as a husband and wife during marriage. This does not mean that a party to an engagement can substantiate a claim to any property owned by the other party during the engagement. It will have to be “matrimonial” property in the sense that it was acquired to provide, directly or indirectly, a home or its contents, or chattels intended to be used within the marriage. Thus contributions to a building society with the intention of raising a mortgage later, hire purchase payments on furniture or for a car, or money or money’s worth expended on decorating a house bought by either or both as the proposed matrimonial home will be subject to this provision (see Matrimonial Proceedings and Property Act 1970 (c. 45), s. 37); but not individual savings or purchases with no nuptial element. These rules of law will not apply in all property disputes between formerly engaged couples, and not only to those brought before the court under subs. (2).

Subs. (2)
The summary procedure under s.17 of the Married Women’s Property Act 1882 is to be available for the settlement of disputes under subs. (1), but such proceedings must be begun within three years of the end of the engagement. Presumably other procedures may be used, such as breach of contract or claims to an interest in land, when the ordinary limitation periods will apply.

3.-(1) A party to an agreement to marry who makes a gift of property to the other party to the agreement on the condition (express or implied) that it shall be returned if the agreement is terminated shall not be prevented from recovering the property by reason only of his having terminated the agreement.

(2) The gift of an engagement ring shall be presumed to be an absolute gift; this presumption may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason.

GENERAL NOTE
Allocation of fault for breach of the contract to marry is no longer important with the abolition of the action for breach. As a corollary, the law relating to the return of gifts conditional on marriage should not depend on responsibility for breaking the engagement, as in the past: see Cohen v. Sellar [1926] 1 K.B. 536

4. After this Act comes into force no person shall be entitled to petition any court for, or include in a petition a claim for, damages from any other person on the ground of adultery with the wife of the first-mentioned person.

GENERAL NOTE
The common law right to claim damages for the tort of criminal conversation, which became a claim for damages in divorce suits after the Matrimonial Causes Act 1857 (c. 85) is finally abolished. This section does not apply to claims for damages which come for trial before the commencement of the Act: see Schedule for repeal of Matrimonial Causes Act 1965, ss. 41 and 7 (2) for commencement.

Abolition of actions for enticement, seduction and harbouring of spouse or child

(a) to any other person on the ground only of his having induced the wife or husband of that other person to leave or remain apart from the other spouse;

(b) to a parent (or person standing in the place of a parent) on the ground only of his having deprived the parent (or other person) of the services of his or her child by raping, seducing or enticing that child; or

(c) to any other person for harbouring the wife or child of that other person,

except in the case of a cause of action accruing before this Act comes into force if an action in respect thereof has been begun before this Act comes into force.

GENERAL NOTE
These three torts, which derive from the old action on the case of quod servitium amisit, and enshrine the concept of wife and children as a husband’s chattels, have become increasingly rare this century.

In Gottlieb v. Gleisen [1958] 1 Q.B. 267 Denning L.J. said that it was contrary to the policy of our courts to extend the inference of the law into the private lives of husband and wife. “If a husband is to keep the affection of his wife,” he said, “he must do it by the kindness and consideration which he himself shows to her.”

Orders for maintenance of surviving party to void marriage from estate of other party

6. –(1) Where a person domiciled in England and Wales dies after the commencement of this Act and is survived by someone (hereafter referred to as “the survivor”) who, whether before or after the commencement of this Act, had in good faith entered into a void marriage with the deceased, then subject to subsections (2) and (3) below the survivor shall be treated for purposes of the Inheritance (Family Provision) Act 1938 as a dependant of the deceased within the meaning of that Act.

(2) An order shall not be made under the Inheritance (Family Provision) Act 1938 in favour of the survivor unless the court is satisfied that it would have been reasonable for the deceased to make provision for the survivor’s maintenance; and if an order is so made requiring provision for the survivor’s maintenance by way of periodical payments, the order shall provide for their termination not later that the survivor’s death and, if the survivor remarries, not later than the remarriage.

(3) This section shall not apply if the marriage of the deceased and the survivor was dissolved or annulled during the deceased’s lifetime and the dissolution or annulment is recognized by the law of England and Wales, or if the survivor has before the making of the order entered into a later marriage.

(4) It is hereby declared that the reference in subsection (2) above to remarriage and the reference in subsection (3) above to a later marriage include references to a marriage which is by law void or voidable.

(5) In section 26 of the Matrimonial Causes Act 1965 (orders for maintenance from deceased’s estate following dissolution or annulment of a marriage), in the definition of “net estate” and “dependant” in subsection (6) (as amended by subsequent enactments) for the words “and the Family Law Reform Act 1969” there shall be substituted the words “the Family Law Reform Act 1969 and the Law Reform (Miscellaneous Provisions) Act 1970.”

GENERAL NOTE
Where a woman “marries” a man in good faith on the understanding that he is free to marry her, and on his death she discovers there was no marriage because he had a wife living at the time, she could formerly make a claim for damages for breach of promise; in Shaw v. Shaw (see General Note) the plaintiff in such circumstances received damages amounting to more than half the deceased’s estate. She would now have no such claim by virtue of s. 1 of this Act.

This section gives a “wife” in similar circumstances, indeed any survivor of either sex of a void marriage, the same right to apply under the Inheritance (Family Provision) Act 1938 (c.45) as if the marriage had been valid, provided that the “marriage” was entered into in good faith, that is has not been dissolved or annulled, and that the survivor has not married since the death.

Where the defect in the union is discovered before the man’s death, the woman has the remedy of maintenance on obtaining a decree of nullity (Matrimonial Causes Act 1965 (c.72), s. 19) or on filing a petition (Matrimonial Proceedings and Property Act 1970 (c.45), s.1).

7.-(1) This Act may be cited as the Law Reform (Miscellaneous Provisions) Act 1970.

(2) The enactments specified in the Schedule to this Act are hereby repealed to the extent specified in the third column of that Schedule, but the repeal of those enactments shall not affect any action commenced or petition presented before this Act comes into force or any claim made in any such action or on any such petition.

Chapter	Short Title	Extent of Repeal
32 & 33 Vict. c.68.	The Evidence Further Amendment Act 1869.	Section 2.
23 & 24 Geo. 5. c. 36.	The Administration of Justice (Miscellaneous Provisions) Act 1933.	In section 6 (1) (b), the words “or breach of promise of marriage”.
24 & 25 Geo. 5. c. 41	The Law Reform (Miscellaneous Provisions) Act 1934.	In section 1 (1), the words from “or for inducing” to the end; and section 1 (2) (b).
12, 13 & 14 Geo. 6. c. 51.	The Legal Aid and Advice Act 1949.	In Part II of Schedule 1, paragraph 1 (b) and (d).
7 & 8 Eliz. 2. c.22.	The County Courts Act 1959.	In section 39 (1) (c), and in section 94 (3) (b), the words “or breach of promise of marriage”.
1965 c.72.	The Matrimonial Causes Act 1965.	Section 41. Section 46(2) so far as it applies for the interpretation of section 41 (3) of that Act.

United Kingdom Legislation for Vanuatu

Law Reform (Miscellaneous Provisions) Act 1970