Which Party Is Entitled To Keep the Engagement Ring After Separation Or Divorce?

Previous Position:

In Jacobs v Davis [1917], a UK Court decided that if a man, without legal justification, refuses to carry out his promise to marry, he cannot demand the engagement ring be returned to him. However, where the woman breaks her promise she must return the ring. Further, if marriage is called off by both parties through the fault of neither party, the engagement ring must be returned to the person who gifted it.

This was because “a gift presented solely in contemplation of marriage is to be deemed subject to the broad and overriding condition that should marriage not take place through no fault of the person presenting the gift, the gift is to be returned. If the marriage takes place, in the absence of agreement to the contrary, the gift becomes the absolute property of the recipient”.

Please note that this approach no longer applies in Australia. Instead, Courts consider laws with respect to engagement rings in three different contexts:

1. Traditional Engagements.
2. De Facto Couples.
3. Married Couples.  

Current Position: Traditional Engagement 

A seminal case in this area is Papathanasopoulos v Vacopoulos [2007]. Mr Vacopoulos gave Ms Papathanasopoulos an engagement ring valued at $15,250.00. Shortly after, on the 16^th August Ms Papathanasopoulos told her fiancée “the wedding is off, here take the ring, I don’t want it.” She took the ring off and left it on the coffee table in front of Mr Vacopoulos who said “I don’t want the ring, it is a gift to you, you can keep it.” He left the house without the ring, so Ms Papathanasopoulos placed it in a box in her wardrobe.

On the 29^th August, Ms Papathanasopoulos told Mr Vacopoulos to collect engagement gifts she received from his family. On the 29^th September, Mr Vacopoulos called Ms Papathanasopoulos and asked to get back together. She refused and called her mother telling her she wanted to throw away everything he had given to her. Her father did just that and threw the box with the engagement ring in the garbage. Mr Vacopoulos found out and started proceedings for detinue for the value of the engagement ring.

Considering a previous decision in Cohen v Sallar, the Court summarised the law relating to engagement rings:

1. If a woman who has received a ring in contemplation of marriage but refuses to fulfil the conditions of the gift she must return it.

• 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.

• It does not matter if the engagement ending ultimately benefits both parties.

• If the engagement ends 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.

• A woman may be able to raise a ‘legal justification’ of her decision to refuse to carry out a promise of marriage if the man engages in ‘repudiatory’ conduct by doing, for example, acts of violence towards her or having a steady and sexual relationship with another woman. In such circumstances the Court stated the “woman can probably keep the ring.”

The Court decided that Ms Papathanasopoulos was liable for the cost of the ring.

Current Position: Married & De Facto Couples  

If the couple is married, or in a de facto relationship, then the Family Law Act 1975 (Cth) applies to the question of who can keep the ring. The engagement ring might be considered as the property of a party and can then be added to the assets pool to be split between both parties.

When making decisions around this, the Court considers the following factors:

1. The second-hand value of the engagement ring
2. The value of the property pool
3. The length of the marriage or relationship
4. The financial and non-financial contributions made by both parties during the relationship
5. The future needs of each party after separation

In Marsden v Baker [2013], the wife received an engagement ring (originally costing $169,000). She later sold it for $70,000 to pay for legal costs and living expenses after the parties separated. In this case, the proceeds from the sale of the ring became part of the asset pool to be distributed.

Additionally, in Damiani v Damiani [2012], the wife received an engagement ring worth $15,000. It agreed between the parties that the wife would give the ring back to the husband, and that the ring would then be added to the husbands share of the asset pool.