01 November 2017

New decision sheds light on the question: who keeps the engagement ring when parties separate prior to marriage?

The question who keeps an engagement ring when a couple separate prior to marriage has been an unresolved issue for some time.

Until recently, the key authority on this point was the old English decision of Cohen v Seller which held that an engagement ring is a gift given for the promise to marry, and if the promise of marriage is not fulfilled then it is implied that the engagement ring will be returned.  This decision was more recently applied in the decision of Papathanaspoulos v Vacopoulos, in that case a man had proposed to a woman who subsequently rejected the proposal by throwing the engagement ring in the garbage.  In applying Cohen v Seller the Supreme Court of NSW held that if the woman did not intend on fulfilling the condition of accepting the ring (ie. marriage) then she ought to have returned the ring.

The Local Court in NSW in Toh v Su [2017] NSWLC 10 has departed from this old English authority.  Magistrate Brender held that:

  • the no fault rule under the Family Law Act means that it is not relevant to consider who decided to break-off the marriage; and
  • the treating of an engagement ring as a gift conditional upon marriage is not consistent with the ‘essential philosophy’ of the Family Law Act or modern concepts of marriage.

The court held that the engagement ring was a gift given absolutely during a time of happiness, and that the parties at that time did not intend to form a legally enforceable contract.  It was therefore not necessary to return the ring after the parties had separated.

The court did however find that the parties were required to return the wedding bands to each other that they had purchased as these rings were being held by the other party for safe keeping until the wedding and were not given as gifts.

Whilst this case sheds light on the question of who gets to keep the engagement ring after separation, ultimately given the conflicting authorities the question remains unresolved.


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