Can I keep my engagement ring after divorce?
Courts will consider the unique circumstances of your relationship when deciding whether an engagement ring needs to be returned. This will typically be done within the context of a final property settlement.
Traditionally, Australian courts followed the view that if an engagement ring was given in contemplation of marriage, the person who gave the ring was entitled to have it returned to them in the event that the marriage did not proceed.
Today however, many couples reside together prior to the marriage and/or are in a de facto relationship, and this makes the matter of who keeps the engagement ring at separation more complicated.
Therefore, the answer to this question is dependent on your individual circumstance.
To break it down, this issue may occur in one of the following circumstances:
- You and your former partner were engaged but did not live together before marriage (traditional engagement)
- You and your former partner lived together, became engaged, but did not marry (de facto couple)
- You and your former partner lived together, were engaged and then married (married couple)
Traditional engagements are less common in today’s society as most couples choose to move in together before getting married. However, if you and your former partner followed this route, calling off the engagement can be seen as a breach of a promise to marry that person. Even though someone cannot sue for money lost as a result of breaking off an engagement, the rules are different for gifts, such as an engagement ring given with the expectation of a marriage.
Here, the court has said that the ring is a ‘conditional gift’ given to someone with the expectation that they will get married. Upon calling off the marriage, the person must return the engagement ring unless there arises a situation where a party has legal justification not to do so.
The Court states this as the following:
- If a person, who has received a ring upon accepting someone’s marriage proposal, refuses to go ahead with the marriage, they must return the ring.
- If the person giving the ring refuses to carry out their promise of marriage without legal justification, they cannot demand the return of the ring.
- It doesn’t matter whether the denial of the promise turns out to be mutually beneficial for you and your former spouse.
- If the engagement is ended by mutual consent, the engagement ring must be returned unless an agreement has been reached to do something different.
- The person who receives the ring may have ‘legal justification’ for refusal to carry out their promise of marriage if there is unlawful conduct on the giving party, such as violence or an affair. Here, the recipient can keep the ring.
De facto couples and Married couples:
A de facto couple is often defined as those who have been together for at least 2 years. They may live together and/or have a child together.
When married couples or de facto couples separate, the Family Law Act comes into action.
As engagement rings generally hold great emotional value, they are mostly excluded from property settlement negotiations. However, if either party raised it as an issue, the engagement ring would be classed as property and added to the total value of the asset pool to be divided between each party.
When making decisions around this, the court will consider the following factors:
- The value of the engagement ring
- The total value of the property pool
- The length of the couple’s relationship
- The financial and non-financial contributions made by each party during the relationship
- Each parties’ individual future needs after separation
It is important to note that the value of an engagement ring for the purposes of a property settlement is the current second-hand value, not the amount it was purchased for (which is often much higher, especially if a number of years have passed). If the value of the engagement ring cannot be agreed, it will be necessary to have the ring externally valued by a professional licensed jewellery valuer.
It is also crucial to remember that decisions surrounding the matter of engagement rings will change on a case-by-case basis. It is very rare for an engagement ring to be dealt with separately from a property settlement.
What happens if the location of the engagement ring is unknown?
In the past, there have been instances where the whereabouts of the ring is unknown. This may occur where one party has sold the engagement ring or claimed to have lost it. In the first scenario, it is likely that the money gained by the sale of the ring will be included in the asset pool.
However, in the situation where the ring is missing, the Court is restricted by what it can do without having any information suggesting its whereabouts (eg. if it was sold/allegedly lost). This will be determined on a case-by-case basis.
If you would like individualised advice regarding keeping/getting back an engagement ring, get in touch with us via the contact form.
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