A really common issue in Family Law, is who gets to keep the engagement ring if the parties never make it down the aisle.
Whilst there is no straightforward answer, the recent case of Papathanasopoulos v Vacopoulos gave us some guidance on how the Court may decide a matter. Just in case you didn’t already think romance was dead, in that case the Court compared a promise to marry or engagement, to a commercial deal.
The Court views the giving of an engagement ring as a conditional gift, given in contemplation of marriage. The Courts referred to a number of principles of general contract law and in the case of Cohen v Seller made the following comment:
“A like result to that I have already stated will follow if an engagement ring be regarded as a pledge or deposit for the fulfilment of a contract. A person who wrongly refuses to carry out a bargain will lose his deposit.”
The Court has summarized the following principles when discussing the return of an engagement ring:
- If a woman who has received a ring in contemplation of marriage refuses to fulfill the conditions of the gift, she must return it;
- If a man has, without a recognized legal justification, refused to carry out his promise of marriage, he cannot demand the return of the engagement ring;
- It matters not in law that the repudiation of the promise may turn out to the ultimate advantage of both parties. A Judge must apply the existing law as to the limits of the justification for breach;
- If the engagement to marry be dissolved by mutual consent, then in the absence of any agreement to the contrary, the engagement ring and like gifts must be returned by each party to the other.
It was noted however, that a woman may be able to raise a plea of legal justification of her decision to not fulfil her promise to carry out the marriage if there is conduct on the man’s part, including, violence towards the woman or a sexual relationship with another woman. In these circumstances the Court noted the woman can probably retain the engagement ring.
Although in Australia, Family Law has a ‘no fault’ based system, it seems the issue of who retains the ring is quite the contrary and can be summarised by looking at who decided not to go ahead with the marriage.
It is important to note that nowadays it is a lot more common that parties are choosing to live together before they marry, which means they could be classed as a de-facto couple entitled to a property settlement under the Family Law Act. In which case, it is more likely that the engagement ring may simply be treated as property and added into the total property pool available to be distributed in a property settlement.