Australia: If the wedding is called off, who keeps the engagement ring?

Well, the wedding is off. Love fled when the couple got to know each other better and it was best to end it now before the walk down the aisle into wedded hell. So, what does the law say about what happens to the engagement ring and all the gifts and property the couple might have bought together?

Man breaks off engagement and demands return of gifts

You'd think that, as the marriage never happened, each party would withdraw with whatever property they had put into the relationship. That would be the sensible and least painful thing to do. But in these situations, anger and bitterness can overtake common sense.

The case of Toh v Su in the NSW Local Court illustrates this point.

He broke off the engagement after he had given her a $15,500 engagement ring and handed her two weddings rings costing $1,300 that she could show to her parents.

During the relationship, he bought her $5000 worth of gifts including an iPhone, Longines watch, diamond necklace and Louis Vuitton bags. Together they bought a $2,600 bedroom suite. This purchase was later cancelled.

Woman initially agrees to return gifts, then fails to comply

When he broke off the engagement after three months, she agreed to his proposal that they would return gifts they had bought for each other.

She wanted his shoes as she had paid for them. He gave them to her, along with other gifts she had given him. But when she refused to hand back the rings and his gifts, he took her to court.

Status of engagement ring if wedding does not take place

Under the law, an engagement ring is a conditional gift, in that it is a gift conditional on a marriage proceeding. It goes back to a British court judgement in 1926, which found there was an implied condition that an engagement ring shall be returned if the engagement is broken off.

However, the landmark 1926 Cohen v Sellar judgement by Sir Henry McCardie also determined that the person who breaks off the engagement cannot demand the return of the ring – unless there is a legal justification not to continue with the wedding, and that can be difficult under modern no-fault divorce laws.

Section 111A(1) of the Marriage Act 1961 abolished the right to recover damages for breaches of a promise to marry. But sub-section (2) of 111A does indicate that there might still be recovery of conditional gifts.

Wedding rings returned but not engagement ring

In the NSW Local Court case, Magistrate Rodney Brender ruled that the man could not demand the return of the engagement ring, as he was the one to break off the engagement. He was the one who broke the "contract" to marry.

The wedding rings were ruled to be the man's property, as the wedding did not take place. But she could keep the phone, watch and diamonds as they were his gifts to her.

It is always better to resolve these issues by mutual agreement than to end up in court. If the parties can't agree on their own, it would be wise to find a qualified mediator who knows the law.

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