Who keeps the engagement rings after separation?
The answer is, it depends…
Part 2: What happens to the engagement ring after marriage and divorce?
In the previous blog post, we looked at the law for what happens to the engagement ring for couples who get engaged, but then who call off the engagement and do not marry and do not have a property settlement under the Family Law Act.
In this blog post, we’ll look at what happens if you actually get married, and later divorce.
If parties are married and then separate, property is divided pursuant to the Family Law Act. Likewise, for de facto and same sex couples who meet certain criteria (see previous post on whether you are in a de facto relationship) their property is divided pursuant to the Family Law Act.
Generally, if the parties cannot agree and their matter goes to Court, the engagement ring will be treated in the same manner all other property and there is no presumption about who will be entitled to it. Rather than applying the law of contract, the Court will consider what would be ‘just and equitable’ pursuant to the Family Law Act. This gives a wide-ranging discretion to the Judge hearing the case. There are also only a limited number of reported Judgement in this area, so it is hard to give a definitive answer.
In the case of Jackson v Jackson, during the honeymoon (or shortly thereafter) the wife decided to separate from the husband. His Honour concluded in the circumstances that it was just and equitable that the wife return the engagement ring to the husband.
In the Marriage of Beneke, the couple separated after having been married for less than a year. At trial the husband was unsuccessful in his claim for the return of the engagement ring. On appeal, the Court found “that this case is not concerned with what the law may be or what traditional understanding may be in relation to disputes about an engagement ring or other gifts of jewellery made either pre-marriage or post-marriage.” Therefore once you are married, things are a lot less clear cut about who gets the ring.
So essentially, based on the current case law, if you get engaged and married, and then separate, it is likely (although not certain) that:
You CAN keep the ring IF:
- The other party agrees to you keeping the ring as part of your property settlement (documented by Consent Orders); or
- You have a Binding Financial Agreement (pre nup) that specifies that you retain the ring; or
- The Court Orders that you can keep it (this is more likely the longer you are together)
You CANNOT keep the ring IF:
- The Court Orders that you have to return it (more likely if your marriage was only for a short period); or
- You have a Binding Financial Agreement (pre nup) that specifies that you are to return the ring
Remember, whether you are married, de facto or same sex, the law is not clear cut, so before you make a decision about your engagement ring or any other property (particularly if you are thinking of disposing of that property) you should seek specialist advice about your individual circumstances.