Recall our earlier discussion of the engagement as a changing set of practices. In general, American law currently treats engagement as a quasi contract to marry. It intervenes when the contract is fraudulent, when one party breaks the engagement improperly, or, most commonly, to settle disputes over property when an engagement ends contentiously. To do so, courts must first determine the relationship between the parties; were they actually engaged? Or was the couple simply courting, cohabiting, carrying on a commercial relationship, maintaining a common-law marriage or actually occupying a legal marriage? The law marks boundaries among the rights and obligations attached to each of these relations. Therefore, the stakes in defining the relationship properly are serious.
Determining the legitimacy of an engagement matters because often the couple have acquired property, invested in wedding preparations, paid for a trousseau, exchanged valuable gifts, taken up joint economic activity, established obligations to third parties, including families, left jobs, or changed their line of work. When something interrupts their agreement to marry, all of these economic commitments turn into contested transactions. How they are resolved depends on determining the nature of the couple’s relationship.
Exactly what legal rights and obligations attached to engaged couples and what distinguished an engagement from ordinary courtship, marriage, or other intimate relations has changed significantly over time. In the largest arc, engagement went from being a public agreement that linked families, and therefore obligated third parties, to a private agreement undertaken by a couple. For courts and legal experts, however, the breaking of engagements posed the most enduring and acute legal questions. When and why should the law intervene at all in the private affairs of couples? And when it did, whose rights was the law expected to protect, and which rights? What about the rights of third parties—relatives and friends of the engaged couple?
Defining an engagement, however, posed special challenges for American courts. Without official certification that the couple was indeed engaged, courts searched for other evidence to prove the nature of their relationship. In general, they sought signs that the couple had committed themselves to marry. Homer Clark’s influential text on domestic relations, for instance, noted that courts had often relied on “evidence that the parties spent much time together, that they often expressed affection for each other or that preparations for the wedding were made” (Clark 1968: 3-4). In some circumstances, courts accepted testimony of third parties who witnessed a couple’s promises to marry, as well as evidence of sexual intimacy between the couple as proof of their engagement.
The kinds of evidence that were available for engagement understandably changed as engagement practices changed. Broadly speaking, engagement went from a public (and often religious) declaration of intentions that clearly involved a couple’s families to a private agreement between two persons that might or might not include announcements and obligations to third parties. Moreover, as we saw in chapter 2, as long as coverture existed, marriage itself entailed a woman’s considerable loss of legal, economic, and political autonomy. Under such circumstances, engagement constituted a distinctive, relatively privileged but temporary position for women. As coverture declined, the transition to marriage changed in character.
As time went on, the sorts of evidence for engagement that courts honored therefore changed significantly. Michael Grossberg sums it up:
The privacy of courtship was the initial obstacle facing judges determined to supervise nuptial selection. Especially after the decline of the banns (posted declarations of marriage required by traditional nuptial statutes), lovers rarely plighted their troth before a coterie of witnesses or in sealed agreements; often an exchange of promises never took place. To surmount the secrecy of espousals courts applied liberal evidentiary rules built on Lord Holt’s 1704 ruling in Hutton v. Mansell that mutual promises of marriage need not be proven by direct evidence but could be authenticated by circumstantial proof. This freed courtship from a number of limitations usually applied to contracts, and highlighted the unique contractual nature of nup
tials and the willingness of American judges to deviate from contractual uniformity when a larger goal—in this case protecting deserted brides—demanded it.. .. Judicial laxity in admitting evidence of nuptial promises, and a refusal to demand strict corroboration of circumstantial evidence, imposed serious nuptial liabilities on men. (Grossberg 1985: 39-40)
Later in the nineteenth century, indeed, men’s complaints about those liabilities drove courts to narrow the range of evidence they would accept as evidence of nuptial agreements (Grossberg 1985: 56-58).
Far more changed, however, than rules of evidence. A series of broad transformations occurred in the way courts treated engagement, distinguished it from adjacent relationships, and dealt with the economic transactions of engaged couples. Speaking very approximately, from the mid-nineteenth century to the early twentieth century, American courts increasingly handled engagement as an asymmetrical quasi contract in which a woman put her reputation at risk more so than did her fiance. A woman whose engagement ended short of marriage, reasoned the courts, lost some of her appeal as a marriage partner, especially if she and her fiance had consummated sexual relations. During this period, courts became increasingly disposed to compensate jilted women not only for material losses but also for pain and suffering.
During the 1920s and 1930s, a reaction against asymmetrical compensation for broken engagements set in, with much hostile worlds talk of gold diggers who enticed men into nuptial agreements for mercenary purposes. From the 1930s onward, American law moved toward a sharper distinction between (1) economic transactions of engaged couples that depended on their commitment to marry and therefore became reversible if a marriage did not occur and (2) other transactions between the same people that did not constitute part of the commitment to marry. Although courts continued to examine whether the relationship between a woman and a man qualified as engagement, courtship, marriage, prostitution, business partnership, friendship, or something else, they thus began to rule that only a relatively narrow range of a couple’s economic transactions belonged to the engagement as such.