Family Law FAQ :
Who keeps the engagement ring after separation?
The answer – it depends…
Part 1 – Calling off the engagement without a marriage
If a couple separates after getting engaged, but do not actually get married or otherwise qualify for property settlement under the Family Law Act, then it is possible to apply for the return of an engagement ring under principles of contract and case law.
In a NSW Supreme Court Case of Papathanasopoulos v Vacopoulos, the man was successful in getting Orders for return of an engagement ring (or it’s value). In that case, the woman ended the engagement shortly after the proposal, and then threw the ring in the garbage. Because the ring no longer existed, the woman was ordered to pay the man for the ring’s value. The woman appealed but was unsuccessful. In that case the trial judge said ““The contract for want of a better word is rejected very shortly after it’s made and the consideration being the engagement ring ought to have been returned… It’s something that was given as a symbol, if nothing else, of the expected ongoing relationship between the parties. If she was rejecting him, then that quite plainly should have been returned.” On Appeal, the original trial judge’s decision was upheld, and an earlier case of Cohen v Sellar was quoted to summarise the law relating to engagement rings.
In that Case the Judge found that the essential principles were:
(a) If a woman who has received a ring in contemplation of marriage refuses to fulfil the conditions of the gift she must return it.
(b) If a man has, without a recognised legal justification, refused to carry out his promise of marriage, he cannot demand the return of the engagement ring.
(d) If the engagement to marry be dissolved by mutual consent, then in the absence of agreement to the contrary, the engagement ring and like gifts must be returned by each party to the other.
An interesting further element in that case was the finding by the Judge that the man’s conduct would be relevant to the decision of who can keep the ring. The Judge said “It seems that a woman would also be able to raise a plea of legal justification of her decision to refuse to carry out her promise of marriage. There may be repudiatory conduct on the man’s part, for example, acts of violence towards the woman or having a steady and sexual relationship with another woman. In such circumstances the woman can probably keep the ring.”
This Case was subsequently quoted in the Queensland Case of HAX v TV. In that case, the judge noted that, ordinarily, when a woman breaks an engagement after a man has given her an engagement ring, she returns the ring to him. But if the man breaks the engagement without recognised legal justification, he cannot claim return of the ring.
In this case, the man’s conduct was the subject of contested domestic violence proceedings in the Queensland Magistrates Court. In those circumstances the trial Judge held that the marriage did not proceed because of the man’s conduct. For that reason, the man was not in a position to claim the return of the engagement ring. The trial Judge’s Orders were not changed on appeal.
What is the answer?
So essentially, based on the current case law, and depending on your circumstances, if you get engaged and then the engagement is called off, it is likely that:
You CAN keep the ring IF:
- He broke off the engagement without any ‘legal justification’; or
- You broke off the engagement due to certain conduct by him (such as violence)
You CANNOT keep the ring IF:
- You broke off the engagement without any ‘legal justification’; or
- He broke off the engagement due to certain conduct by you
Remember, the law is not clear cut, so before you make a decision about your engagement ring (particularly if you are thinking of disposing of the ring) you should seek advice about your individual circumstances.
Next week, I’ll post Part 2 of this Blog that will talk about what happens to the ring if you get married, but subsequently separate.
Kasey Fox is a Family Lawyer and Director at Farrar Gesini Dunn
By Kasey Fox Lawyer