In Cohen v Sellar (1926) 1 KB 536 McCardie J commented
(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.
(c) It matters not in law that the repudiation of the promise may turn out to the ultimate advantage of both parties. A judge must apply the existing law as to the limits of justification for breach.
(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.In Papathanasopoulos v Vacopoulos [2007] NSWSC 502 Smart AJ found that if a woman refuses without legal justification to marry her fiancé, she cannot keep the engagement ring and must return it.
Vicki Papathanasopoulos had received a $15,250 engagement ring on the condition that she would marry Andrew Vacopoulos. She called off the engagement (and wedding) ten days after the engagement party and receipt of the sparkler, with words to the effect “the wedding is off, here take the ring, I don’t want it.”
She then removed the engagement ring and placed it on the coffee table in front of Vacopoulos. She stated that during the remainder of his time at the family home, about half an hour, the ring remained on the table in front of him. At no time did he attempt to pick up the ring or take the ring with him. He responded with words to this effect, “I do not want the ring it is a gift for you, you can keep it.”
At some stage after Vacopoulos she “put all of the photographs, jewelry ( [sic] ) and other items that were symbolic of my relationship with [AV] in a box and packed them away in a wardrobe in my room.” About 24 August 2005 she said to Vacopoulos in a telephone conversation, “with the presents we got from the engagement on your side, I want you to pick them up I don't want them, ring my dad to organise a time to pick them up so I'm not in the house". Papathanasopoulos complained that in September he telephoned her at work, declared his love for her and said he wanted her back.
She said that she told him to stop telephoning her and leave her alone, terminating the conversation. Papathanasopoulos telephoned her mother and told her that she wanted to throw out all the items Vacopoulos had given her. Her father threw the box with all the items in the rubbish bin. In the early afternoon of 29 September 2005 Vacopoulos sent an email which stated, amongst other things: “Your dad said that he tore up my photos and threw the ring in the garbage. Why is this happening, I don't want it to happen".
Vacopoulos later made a claim in the NSW Local Court for the return of the engagement ring or compensation for its value. Magistrate George in the Local Court found for Vacopoulos, ordering Papathanasopoulos to compensate Vacopoulos for the ring's value. Papathanasopoulos appealed, claiming that the ring was a gift and that she was entitled to deal with it as she pleased.
Stewart AJ commented
If a party rejects the gift of an item as the magistrate found, it is not open to her, if she later takes control of the item, to claim the item as a gift when she continues to assert that she does not want it and asks for it to be thrown out. A party cannot be forced to take or accept a gift … Upon VP rejecting the gift she became a bailee of that item so long as she had it in her control. It is not open to a bailee to cause the item bailed to be thrown into the garbage bin. This is especially so where the item is valuable and no proper notice was given and but a short time had elapsed. Holding a small item, such as an engagement ring is not a great chore. I do not accept the contention that it was irrelevant that VP rejected the gift of the engagement ring.The Supreme Court found that Papathanasopoulos was the holder of a “conditional gift”: the engagement ring would only become her property after their marriage took place. He said that, legally, a woman who receives a ring in contemplation of marriage, and who later refuses to marry, must return the ring unless there is some legal justification for her decision - for example acts of violence towards her, or evidence that her fiancé was unfaithful.
Smart found that there was no such justification. By changing her mind about the marriage, Papathanasopoulos was rejecting the gift; “upon rejecting the gift she became a bailee of that item so long as she had it in her control” responsible for it until Vacopoulos asked for its return.
Papathanasopoulos’s claim that the gift became absolute when Vacopoulos told her that she could keep it was rejected by Smart, construing Vacopoulos' statement as merely an attempt to preserve the relationship rather than evidence that he was giving her the ring to do with as she pleased. The appeal was dismissed; Papathanasopoulos was again ordered to pay compensation and Vacopoulos’s costs.
'Rituals of Engagement: What Happens to the Ring When an Engagement is Called Off?' by James Duffy, Elizabeth Dickson and John O'Brien in (2020) 94 Australian Law Journal 61 comments
Whether due to the beauty, the cost, or the sentiment of an engagement ring, it is an asset that people hold valuable. In recent years, Australian popular media has been captured by stories of celebrities who have broken off engagements, but then quarrelled over who is entitled to the engagement ring. James Packer, Mariah Carey, former Australian cricket captain Michael Clarke and Lara Worthington (then Bingle), have all supposedly been involved in disputes surrounding expensive engagement rings. The rule of thumb that a man should spend two to three months of annual salary on an engagement ring meant that Packer and Carey were dealing with a 35 carat, 10 million dollar ring, and Clarke and Bingle a 4.7 carat, $200,000 ring. It is hard to tell whether these disputes were real or fabricated (Bingle allegedly flushed her engagement ring down the toilet). Whatever the case, they do raise an interesting question as to who is legally entitled to keep the ring on dissolution of an engagement.
As will be outlined in this article, the law surrounding engagement rings has been quite stable in Australia. Australian courts have adopted the thorough reasoning of Justice McCardie in the 1926 English High Court (King's Bench Division) decision of Cohen v Sellar. It came as a surprise when in 2017, the New South Wales Local Court in Toh v Su questioned whether Cohen v Sellar still represented good law. The Magistrate did not follow the reasoning in Cohen v Sellar, and suggested that a more modern view regarding the treatment of engagement rings was required. This article suggests that there are conceptual difficulties with the substance of the decision in Toh v Su, and procedural issues relating to the doctrine of precedent, which mean that this decision should not be adopted by other courts. As a decision of the New South Wales Local Court, the judgment (at present) may not be of great moment. Difficulties will arise however, if other courts in the New South Wales jurisdiction or beyond, adopt the reasoning contained in the judgment.The authors comment
Given the adoption of Cohen v Sellar principles into Australian common law, it came as a surprise that Magistrate Brender in Toh v Su questioned the modern relevance of Cohen v Sellar and refused to follow the decision. The case involved Mr Toh proposing to Ms Su on 5 December 2015 and giving her an engagement ring. On 5 March 2016, Toh said to Su (in the presence of a friend) that he no longer wished to marry Su or be in a relationship with her. He also stated that "everything that belongs to each party will be returned to each party".
Toh brought an action in a New South Wales Local Court (Downing Centre) seeking the return of the engagement ring, as well as several other gifts. Toh sued for the engagement ring on the basis that it was a gift conditional on marriage, and as the marriage did not go ahead, he was entitled to its return. If Cohen v Sellar was applied in this case, the result would be that as Mr Toh, without recognised legal justification, refused to carry out his promise of marriage, he could not demand the return of the engagement ring. The Magistrate held however that Mr Toh was unable to reclaim the engagement ring, on the basis that it was an unconditional gift and therefore became the absolute property of Ms Su.
The fact that the marriage did not go ahead was irrelevant, as there were no conditions attached to the giving of the ring. While his Honour acknowledged that it would be possible to give an engagement ring with conditions (borne from words or conduct), his Honour felt that the default position for any engagement ring is that it should be viewed as a gift given without condition.
Magistrate Brender reached this conclusion based on the supposed effect of two pieces of legislation. First, his Honour held that, given the abolition of action for breach of promise to marry in s 111A of the Marriage Act, "there is arguably no room for the operation of the rule of recovery [of the engagement ring] in the event the marriage does not proceed".
Second, given the passing of the Family Law Act 1975 (Cth) and the principle of no-fault divorce, his Honour stated that, "it would be surprising, given that statute, if the common law still determined legal rights between parties to a proposed marriage by reference to whether or not their conduct in breaking off an engagement was justified or not".
The first criticism that can be made of his Honour's judgment is that there are jumps in logical reasoning. It is not clear why the enactment of s 111A of the Marriage Act abolishing the action of breach of promise to marry should affect a decision as to who should keep an engagement ring. It is simply suggested as a matter of fact, that it does. One possibility is that the Magistrate was concerned (despite the presence of s 111A(2), considered in the next paragraph) with the "deposit or pledge" analogy of an engagement ring. If one party breaches their promise to marry they forfeit the deposit of the ring. Breach of promise to marry was previously recognised as a legal wrong, with attendant legal consequences regarding the loss of a deposit. Given the abolition of action for breach of promise to marry, it could be argued that since there is no legal obligation to honour a promise of marriage, you should not be liable to lose a deposit if you default on your promise. ...
Comparative law and case law aside, treating an engagement ring as an unconditional gift would seem inconsistent with the current wording of s 111A of the Marriage Act. Subsection (2) states that the abolition of the "breach of promise" action in subs (1) "does not affect an action for the recovery of any gifts given in contemplation of marriage which could have been brought if this section had not been enacted". An action brought for recovery of an engagement ring in Australia prior to the enactment of s 111A(1) would be subject to common law Cohen v Sellar principles. Cases such as Kais v Turvey, Papathanasopoulos v Vacopoulos and Loumbos v Ward all make it clear that an engagement ring is properly characterised as a conditional gift. It is difficult to understand how the fundamental nature of this gift can be changed by abolishing a separate (though somewhat related) cause of action in breach of promise to marry.
Whatever reasoning informed Magistrate Brender's decision, it does not account for the clear intention of the Commonwealth Parliament in 1975, as contained in s 111A(2), that the law relevant to the disposition of gifts given in contemplation of marriage is undisturbed by the abolition of the action for breach of promise in s 111A(1). The contemporary meaning and symbolism of an engagement ring is a social question. On that basis, it would seem more appropriate for the Commonwealth Parliament to decide how such a gift should be characterised, and the attendant consequences that flow from such a characterisation for those who terminate an engagement.
Similar legislation from different countries around the world highlight how this task could be achieved. In England and Wales, the Law Reform (Miscellaneous Provisions) Act 1970 (UK) removed any cause of action for breach of promise to marry. The British Parliament acted upon a 1969 report by the English Law Commission, suggesting that the action be removed. As a separate question, the Law Commission (and subsequently the Parliament) dealt with the legal entitlement to gifts conditional upon marriage, where the marriage did not proceed. Section 1(1) of the Act removed any action for breach of promise to marry: An agreement between two persons to marry one another shall not under the law of England and Wales have effect as a contract giving rise to legal rights and no action shall be brought in England and Wales for breach of such an agreement, whatever the law applicable to such an agreement.
Section 3 of the Act deals with gifts given in contemplation of marriage: (1) A party to an agreement to marry who makes a gift of property to the other party to the agreement on the condition (express or implied) that it shall be returned if the agreement is terminated shall not be prevented from recovering the property by reason only of his having terminated the agreement. The gift of an engagement ring shall be presumed to be an absolute gift; this presumption, may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason.
The effect of this s 3 in England and Wales is that the decision in Cohen v Sellar no longer represents good law in those countries. [74] Perhaps this is what influenced the Magistrate in Toh v Su (and earlier Justice McPherson in Wynen v Jenkins) to question whether Cohen v Sellar was still good law in Australia. It is important to note however, that the law governing entitlement to engagement rings in England and Wales is determined by the clear wording in s 3(2) of the Law Reform (Miscellaneous Provisions) Act 1970 (UK). The law was not changed, by implication, from the wording of s 1 (the equivalent of s 111A(1) of Australia's Marriage Act) in isolation. This was the implication that the Magistrate sought to draw in Toh v Su, and absent more direct statutory language in the Marriage Act, it is argued that it was not a logical implication to make.
The next criticism of the judgment is his Honour's reliance upon the "no-fault" divorce provisions of the Family Law Act 1975 (Cth). His Honour argued that given fault was no longer relevant to obtaining a divorce (and subsequent property settlements), it should not be relevant to determining property rights upon dissolution of an engagement. At face value, this argument has some appeal, but the analogy breaks down when one considers the status of the engagement ring before, and after, marriage occurs. When a marriage has occurred, an engagement ring is no longer a conditional gift. The gift becomes unconditional, and is the absolute property of the donee (traditionally, a wife). The "no fault" provisions of the Family Law Act simply mean that the issue of who called off the marriage cannot be used as leverage to determine who should keep the engagement ring. The ring may stay with the wife or be returned to the husband as part of a property settlement, but there is no question that, until such time, the wife would be the legal owner of the engagement ring.
The situation is different when a marriage does not occur, because the condition on which the engagement ring was given has not eventuated. This means that legal entitlement to the engagement ring is in issue. Based on Cohen v Sellar principles, the idea of fault (who called off the engagement) is important to determining who gets to keep the ring. It would certainly be possible to extricate the notion of "fault" from who is entitled to keep an engagement ring, but this would mean a retreat from Cohen v Sellar principles. The result would be that the engagement ring is returned to the person who gave it, regardless of who called off the engagement. There are many who would consider this a fair result, and in Toh v Su, Mr Toh pleaded his case on this basis. Such a change however, should ultimately come from the legislature, and the overruling of Cohen v Sellar principles in the absence of clear legislative guidance was not an appropriate step for a Magistrate to take.
Looking forward, whether fault should continue to play a role or not in who keeps an engagement ring upon dissolution of an engagement is an interesting social question. No fault divorce is an expedient that makes property settlements simpler and less acrimonious. Whether the policy drivers applicable to no fault divorce should extend to legal entitlements to an engagement ring is a debate worth having, but not a debate that should be decided by a Local Court of New South Wales. In any event, that debate is a different one to whether an engagement ring is a conditional or unconditional gift. This article contends that neither the Marriage Act or the Family Law Act 1975 (Cth), separately or in combination, have the effect of changing the essential nature of an engagement ring, which is a conditional gift.
